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NAVAL DIGEST 

CONTAINING 

DIGESTS OF SELECTED DECISIONS 

OF THE SECRETARY OF THE NAVY AND 

OPINIONS OF THE JUDGE ADVOCATE 

GENERAL OF THE NAVY 

1916 



PREPARED BY 

CAPTAIN EDWIN N. McCLELLAN 

United States Marine Corps 



M.S, l»U. 









I 



1-JLC6 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1916 



s«& 



CN 



X \0 



,D. of D. 
JUL 23 1917 



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£ 



9386-17, 
C. 

Department op the Navy, 
Office op the Judge Advocate General, 

Washington, November 29, 1916. 
From: Judge Advocate General. 
To: Secretary of the Navy. 
Subject: " Naval Digest, 1916." 
Inclosure: (A) Copy of Naval Digest, 1916. 

1. I transmit herewith for your formal approval a copy of ' 'Naval Digest, 
1916," containing digests of selected decisions of the Secretary of the Navy 
and opinions of the Judge Advocate General of the Navy, prepared under 
my direction by Captain Edwin N. McClellan, United States Marine Corps, 
and authorized to be published by your authority. 
Approved: Ridley McLean. 

Josephus Daniels, 

Secretary of the Navy. 



Judge Advocate General of the Navy. 



Name. 



To— 



Col. Wm. B. Remey, U. S. M. V.K . . . 

Capt. Samuel C. Lemly, U. S. N.2 

Capt. Samuel W. B. Diehl, U. S. N. . 
Capt. Edward H. Campbell, U. S. N. 

Capt. Robert L. Russell, U. S. N 

Capt. Ridley McLean, U. S. N 

Capt. William C. Watts, U. S. N 



June 8,1880 
June 4,1892 
June 4,1904 
Jan. 14, 1908 
Nov. 3,1909 
Nov. 5, 1913 
Jan. 6, 1917 



June 4,1892 
June 3,1904 
Xov.12,1907 
Nov. 3, 1909 
Nov. 5,1913 
Dec. 2,1916 



1 Served as Acting Judge Advocate General before the Office of the Judge Advocate General 
was established by the act of June 8, 1880 (21 Stat., 164). 

2 Retired June 17, 1902, but continued as Judge Advocate General. 



EXPLANATORY NOTE. 



The Naval Digest is a reference book containing digests of decisions and 
opinions, and information in connection with them. Part of this informa- 
tion has been published from time to time in Court-Martial Orders, General 
Orders, Index-Digests, Annual Keports, etc., while a great deal of it is 
published herein for the first time. 

The material is classified and arranged alphabetically under convenient 
reference headings, making it easy to consult and to locate readily any 
desired information to an extent that was never before possible. Small 
type has purposely been used in order that all the information contained 
in the digest might be published in a book of a convenient size. It is not 
a textbook and does not in any sense supersede the Navy Regulations, 
Forms of Procedure, or any other official publication. 

Numerous citations of department file numbers, decisions of civil courts, 
decisions of the Comptroller of the Treasury, opinions of the Attorney 
General, etc., are published. While these may be of assistance to the 
service at large, they are published primarily for the future convenience 
of the department itself, which is thus afforded a reference to the authori- 
ties for use in cases involving similar points without having to go over 
ground which has been fully covered. In many cases subjects consist 
merely of references to file numbers and other citations. These are pub- 
lished for the information of the department. 

No added weight is given to any information because it is published 
in this volume. As an illustration, the information published in Court- 
Martial Orders under the heading of "Bulletin" has the same weight after 
being published in this Digest as it had originally. Since matter herein 
published might be overruled or amended subsequent to the publication 
of the Digest, great care should be exercised to ascertain if such has occurred 
before assigning weight to such matter. With reference to the relative 
weight of opinions and decisions reference should be made to "Judge 
Advocate General, 30." 

The Navy Regulations, Forms of Procedure, and Court-Martial Orders 
issued subsequent to 1915 should always be consulted and followed in pref- 
erence to the Naval Digest, for they contain the latest authoritative regu- 
lations, decisions, opinions, and information. This is particularly so with 
reference to matters of form for naval courts-martial procedure and the 
correct forms and phraseology for charges and specifications. 

Particular attention is directed to the heading "Words and phrases," 
under which heading will be found not only many definitions of Latin 
words and phrases, legal words, terms, and expressions, but other informa- 
tion, all alphabetically arranged. 

The annual Index-Digest of Court-Martial Orders will hereafter be in the 
nature and form of a Supplement to the Naval Digest, 1916, and thus make 
a revision of it convenient and practicable when it is desired to issue a 
new edition. 

3 



4 EXPLANATORY NOTE. 

Many abbreviations of citations have of necessity been used but only 
the following will be explained: "R-" means "Navy Regulations, 1913," 
unless some other year is specifically mentioned or clearly apparent; thus 
"R-817 (7) " means "Navy Regulations, 1913, R-817 (7).' y "File" means 
the files of the Secretary of the Navy (which includes the Office of the 
Judge Advocate General), unless some other department, bureau, or office 
is mentioned; thus "File 26251-12159, Sec. Navy, Dec. 22, 1916," means 
a letter signed by the Secretary of the Navy, dated December 22, 1916, 
and in general refers to a decision, while "File 26251-12159, J. A. G., 
Dec. 22, 1916," means a letter signed by the Judge Advocate General, 
dated December 22, 1916, and in general refers to an opinion. In addition 
to the above, "J. A. G." means "Brief and Opinion Book of the Judge 
Advocate General," containing letter-press copies of briefs and opinions; 
thus "14 J. A. G. 23" would mean Volume 14 of the Brief and Opinion 
Books of the Judge Advocate General, page 23. " C. M. 0. " means " Court- 
Martial Order." At one time such orders were designated "General 
Court-Martial Orders," but as a matter of convenience they are all cited 
as "C. M. O." "G. C. M. Rec." means "General court-martial record." 
Upon being received in the department and after final action is taken 
thereon each general court-martial record receives a number and is filed 
in the Office of the Judge Advocate General. This number is in addition 
to the file number which is placed upon the charges and specifications 
and all correspondence relating to the trial; thus "G. C. M. Rec. 29422, 
p. 2 " means "General Court-Martial Record No. 29422, page 2." "G. 0." 
means General Order of the Navy Department. Decisions of the Supreme 
Court of the United States are published officially in United States Reports, 
although the earlier volumes are known and generally cited by the names 
of'the official reporter, Dallas, Cranch, Wheaton, Peters, Howard, Black, 
Wallace, and Otto; thus, "2 Dalf. 23," "2 Cr. 25" or "2 Cra. 25" or "2 
Cranch 25," "1 Wheat. 2," "2 Pet. 32," "1 How. 45," "2 Black 342," "1 
Wall. 46," and "1 Otto, 4." These may also be cited as are the official 
publications of later decisions, as, "232 U. S. 546," which would mean 
volume 232 of the decisions of the United States Supreme Court, page 
546. Decisions of Inferior Federal Courts are found in Federal Cases 
(Circuit and District Courts) cited as "Fed. Cas." and extending from 
1789 to 1880, and the Federal Reporter, cited as "Fed. Rep." or "Fed." 
and extending from 1880 to date. These reports do not include the de- 
cisions of the Court of Claims (a Federal court), which are published offi- 
cially in the Court of Claims Reports cited as "Ct. Cls." or "C. C." or 
"C. Cls." "Op. Atty. Gen.", "Op. A. G.", and "A. G." means "Opin- 
ions of Attorneys General' '; thus, "25 Op. Atty. Gen. 2 " or "25 Op. A. G. 
2" or "25 A. G. 2" means volume 25 of the Opionions of Attorneys Gen- 
eral, page 2. "Comp. Dec." means "Decisions of the Comptroller of the 
Treasury"; thus, "19 Comp. Dec. 5" means volume 19 of the Decisions 
of the Comptroller of the Treasury, page 5. "R. S." means Revised 
Statutes of the United States. "Stat." means the United States Statutes 
at Large; thus, "35 Stat. 621 " means volume 35 of the United States Statutes 
at Large, page 621. 



NAVAL DIGEST. 



ABBREVIATION. 

1. Middle names In specifications— Christian names in specifications other than the first 

may be indicated by initial letters. C. M. O. 150, 1897, 3; 36, 1914, 6, 7; 4, 1916, 5. 
See also C. M. O. 1, 1914, 4; 5, 1914, 7; 40, 1914; 39, 1915. See also C. M. O. 23, 1911, 2, 
where first name was indicated by initial in court-martial order. 

2. Sentences— Improper abbreviations— "U. S." for "United States." G. C. M. Rec. 

21869, 21852, 21847, 21846, 21845, 22936, 23760. See also File 26504-76, Sec. Navy, 
April 5, 1910. 

ABETTING. See Aiding and Abetting. 

ABSENCE. 

1. Accused during trial. See Accused, 1-9. 

2. Arrest during. See Absence from Station and Duty After Leave Had Ex- 

pired, 3. 

3. Counsel during trial. See Counsel, 1. 

4. Death, presumption of— Continued absence. See Common Law, 7; Line of Duty 

and Misconduct Construed, 18-21. 

5. Leave of absence. See Leave of Absence. 

6. Member from meeting of court. See Members of Courts-Martial, 1-6. 

7. Unauthorized— General court-martial charge. See Absence from Station and 

Duty After Leave Had Expired; Absence from Station and Duty Without 
Leave; Desertion. 

8. Same— Diseases contracted during. See Enlistments, 11; General Order No. 100, 

June 15, 1914; Marine Corps, 30. 

9. Same — Voluntary drunkenness is no defense to unauthorized absence. See Absence 

from Station and Duty After Leave Had Expired, 9, 10; Drunkenness, l. 

10. Same — Duration or period of the unauthorized absence should be alleged in specifica- 

tions—The length of an unauthorized absence should be set forth in the specification 
of a naval court-martial, as such allegation goes to show whether or not the offense 
is of an aggravated nature. File 26287-3016, J. A. G., June 25, 1915; C. M. O. 22. 
1915, 4. See also Absence from Station and Duty Without Leave, 29; Charges 
and Specifications, 92; Desertion, 99. 

11. Same— Department held that a specification of a naval court-martial, which merely 

alleged an unauthorized absence at a certain time, but not the period or duration of 
such absence, is sufficient in law and alleges an offense. (See C. M. O. 89, 1890; File 
26287-1125: 1. J. A. G., Mar. 19, 1912; G. C. M. Rec. No. 30485, p. 754; Dynes v. 
Hoover, 20 How., 65.) File 26287-3016, J. A. G., June 25, 1915; C. M. O. 22, 1915, 4. 
But see Absence, 10. See also Charges and Specifications, 92. 

It has been the custom and practice to allege the period of absence. See G. C. M. 
Rec. 383 (1821). 

12. Same— Duration or period of— A man who was injured while absent without leave, 

was considered as so absent until the time that he reported, or some one reported 
in his behalf, as to his whereabouts. File 3901-04, J. A. G. , May 3, 1904. 

13. Same — "Absence from station and duty without leave" and "Absence from station 

and duty after leave had expired" is properly chargeable as such under A. G. N. 
8, paragraph 19. C. M. O. 5, 1914, 7; 49, 1915, 19. 

14. United States, absence from— In as much as the Territory of Hawaii is under the 

j urisdiction of the United States it was held that residence in Honolulu is not absence 
from the United States within the meaning of A. G. N., 61 and 62. File 6091, Nov. 
5, 1906. 

15. Without pay— Can not be granted officers. See Leave of Absence, 11, 12. 

ABSENCE FROM STATION AND DUTY AFTER LEAVE HAD EXPIRED. 

1. Aggravating circumstances — Combined with — General courts-martial. See Ab- 

sence from Station and Duty Without Leave, 12. 

2. Same — Combined with — Summary courts-martial. C. M. O. 16, 1916, 6-7. See also 

Absence from Station and Duty Without Leave, 6. 



ABSENCE AFTER LEAVE HAD EXPIRED. 

3. Arrest and acquittal by civil authorities— A defense to— Where an accused is charged 

with "Absence from station and duty without leave" or "Desertion" and upon his 
trial by naval court-martial for the offense it is proved that his unauthorized absence 
was solely due to his arrest and detention by the civil authorities, which detention 
was followed by an acquittal in the civil court, the accused should be acquitted in the 
court-martial proceedings. If, however, the unauthorized absence was caused by the 
misconduct of the accused, as evidenced by his conviction in the civil courts, such 
facts do not constitute a legal defense to 'the unauthorized absence. C. M. O. 5, 
1912,3-14; 14, 1914, 4-6. See alto File 26287-1008; 26287-1012; 3811-04; Op. J. A. G., 
Jan. 18, 1912; Intent, 2. 

4. Same— Where a commanding officer, arrested by the civil authorities, while absent 

without leave fails to make any report whatever of his whereabouts, either to his 
immediate superior or to the Secretary of the Navy, he must be held responsible 
for his resulting unauthorized absence, notwithstanding the fact that he may be 
acquitted by the civil courts when tried. C. M. O. 19, 1915, 9. 

5. Arrest and conviction by civil authorities— Not a defense to. See Absence from 

STATION AND DUTY AFTER LEAVE HAD EXPIRED, 3. 

6. Charge — Proper charge is "Absence from station and duty after leave had expired,'' 

and not "Absence overleave." C. M. O. 53, 1914, 5-6. 

7. Clearly proved by the evidence— Accused should be found guilty. C. M. O. 49, 1915, 8. 

8. Conduct to the prejudice of good order and discipline — Simple offense of "Ab- 

sence from station and duty after leave had expired" not properly chargeable under. 
See Absence from Station and Duty Without Leave, 12. 

9. Drunkenness, voluntary— In a case where an accused, charged with "Desertion," 

was found "guilty in a less degree than charged, guilty of absence without leave, but 
without criminality'' andacquitted, thedepartment stated that itcannot admit that 
a man absent from his station and duty for nearly seven months, whose only excuse 
was his own drunkenness at the time of leaving, was without blame and should be 
acquitted. The court erred in so finding, for no claim was made that the accused had 
been drugged, or forced into sucn drunken condition. Accordingly the proceedings, 
findings, and acquittal were disapproved, and the accused being an undesirable 
person for the naval service, discharged as undesirable, as an independent pro- 
ceeding. C. M. 0. 11, 1905, 2. See also Drunkenness, 1. 

10. Same — Voluntary drunkenness is never an excuse for an offense such as unauthorized 

absence, but m many cases is an aggravation. (See G. O. 110, p. 7.) CM. 0.25, 
1915, 2. 

11. Duration of— Should be alleged in specification, etc. See Absence, 10, 11; Absence 

from Station and Duty Without Leave, 39; Charges and Specifications, 92. 

12. Enlisted men— Comments in Court-Martial Orders regarding unauthorized absence of 

enlisted men. C. M. O. 23, 1912. 4; 25, 1914, 4; 49, 1915, 8. 

13. Intent— Not necessary to allege or prove specific intent. C. M. O. 5, 1912, 9. See also 

Absence from Station and Duty Without Leave, 20; Intent, 2. 

14. Leave of absence — Burden of ascertaining time of expiration of leave of absence or 

lioerty is on individual. See Leave of Absence, 3. 

15. Offlcers^-Charged with. CM. O. 31, 1887; 48,1888; 56, 1889; 6U, 1890; 41, 1891; 20, 1894; 

73, 1896; 136, 1901; 230, 1902; 203, 1902; 1, 1908; 38, 1909; 5l", 1910; 29, 1912; 5, 1913; 
13, 1914; 39, 1914; 47, 1914; 28, 1915; 40, 1883; 39, 1915; 4, 1913; 37, 1913; 39, 1915; 14, 
1916; 39, 1916; 40, 1916; 42, 1916; 4, 1917; 8, 1917. 

16. Overstaying leave — Enlisted men tried by general court-martial— Should have been 

charged as "Absence from station and duty after leave had expired." C. M. O. 13, 
1881. 

17. Paymaster's clerk— Charged with. C M. O. 38, 191& 

18. Prima facie case of— Where an accused was arrested by the civil authorities on the 

same day that his liberty expired and at a place which was approximately 400 miles 
from his station and duty, a distance which would require at least seven hours to 
cover, he is prima facie guilty of absence from station and duty after leave had ex- 
pired, at least, unless the accused can satisfactorily show, in rebuttal, that the situa- 
tion was not due in any manner to his own misconduct. C M. O. 14, 1914, 4. See 
also Judicial Notice, 1. 

19. Warrant officers— Charged with. C. M. O. 35. 1912; 3. 1913; 23, 1914; 11, 1915; 10, 1879; 

52, 1880; 49, 1888; 60, 1888; 189, 1901; 236, 1902; 15, 1903; 89, 1907; G. C M. Rec. 11218. 

20. Warrant officers (commissioned)— Charged with. C M. O. 18, 1911; 37, 1914; 

23, 1915; 25, 1915; 28, 1915; G. C M. Rec. 19776; C M. O. 14, 1917. 



i 



ABSENCE WITHOUT LEAVE. 7 

ABSENCE FROM STATION AND DUTY WITHOUT LEAVE. 

1. "Absence without leave— While at the present time this offense is charged as 

"Absence from station and duty without leave " it was charged as "Absence 
without leave" in the following instances: C. M. O. 7, 1881; 12, 1882; 15, 1882; 
43, 1882; 48, 1882; 56, 1882; 23, 1883; 36, 1883; 39, 1883; 25, 1885; 19, 1889; 63, 1889; 
42, 1891. 

2. Same — Where an accused, charged with desertion, is found guilty in a less degree than 

charged, he should be foimd guilty of "Absence from station and duty without leave " 
or "Absence from station and duty after leavehad expired, "and not "Absence with- 
outleave" or "Absence overleave." C. M. O. 53, 1914, 5-6. See also Findings, 2. 

3. Acquittal of— Approval of acquittal of unauthorized absence entitles accused to pay 

during such absence. See Pay, 1. See also Confinement, 7; Deseetion 9. 

4. Same — Acquittal of " Desertion" is also acquittal of "Absence from station and duty 

without leave." See Desertion, 9. 

5. Aggravating circumstances— Combined with — General courts-martial. See Absence 

from Station and Duty Without Leave, 12. 

6. Same — Combined with— Summary courts-martial— "Absence from station and duty 

without leave" combined with aggravating circumstances, being made up of two 
separate offenses, should be preferred in two specifications in a trial by summary 
court-martial. C. M. O. 16, 1916, 6-7. 

7. Arrest and acquittal by civil authorities— As a defense to unauthorized absence. 

See Absence from Station and Duty After Leave Had Expired, 3, 4. 

8. Arrest and. conviction by civil authorities— Not a defense to unauthorized absence. 

See Absence from Station and Duty After Leave Had Expired, 3. 

9. "Attempting to absent himself from his station and. duty without leave" — 

Enlisted man charged with. C. M. O. 15, 1889. 

10. Charge— Proper charge is "Absence from station and duty without leave," not 

"Absence without leave." C. M. O. 53, 1914, 5-6. 

11. Commanding officer— Charged with. C. M. O. 34, 1889; 19, 1915. 

12. "Conduct to the prejudice of good order and discipline"— It is proper to charge 

an accused with both "Absence from station and duty after leave had expired" or 
"Absence from station and duty without leave " and "Conduct to the prejudice of 
good order and discipline" where the unauthorized absence was with the manifest 
intention of evading some particular duty (as coaling ship or a landing party), or 
service on some particular ship (as by missing ship). C. M. 0.6,1908,4-5; 5,1914,7; 

25. 1914, 5; 3, 1916, 7-8. See also C. M. O. 6, 1915, 2; 12, 1915, 2; 16, 1915, 2; 20 ,1915, 1; 

27. 1915, 2; 42, 1915, 2. 

13. "Desertion" — Accused should not be charged with both "Desertion" and "Absence 

from station and duty after leave had expired" or "Absence from station and duty 
without leave" for the same unauthorized absence. C. M. O. 49, 1910, 15-16; 23, 
1910, 6; 5, 1914, 7. See also Desertion, 5. 

14. Same — Enlisted men acquitted by naval court-martial of the charge of "Desertion" 

are thereby acquitted by implication of the lesser offense of "Absence from station 
and duty after leave had expired" or "Absence from station and duty without 
leave." C. M. O. 14, 1914, 4-5. 

15. Drunkenness, voluntary — Not an excuse for unauthorized absence. See Absence 

from Station and Duty After Leave Had Expired, 9, 10; Drunkenness, 1. 

16. Duration of— Should be alleged in specifications, etc. See Absence, 10, 11; Absence 

from Station and Duty Without Leave, 29. 

17. Extending over period of enlistment. See Enlistments, 9-11. 

18. Finding of "Absence from station and duty without leave" on a charge of 

"Desertion" is an acquittal of "Desertion"— Every desertion includes an 
unauthorized absence and upon a trial for desertion the accused is tried for this 
unauthorized absence involved in the offense of desertion charged. If convicted 
of the lesser offense, the accused is acquitted, in law, of the greater offense of desertion. 
C. M. O. 17, 1910, 8-10. See also Desertion, 6; 13 Op. Atty. Gen., 460. 

19. Gist— Is the unauthorized absence. See Absence from Station and Duty Without 

Leave, 29. 

20. Intent— Upon a charge like that of "Absence from station and duty without leave" it 

is not necessary to allege or prove any specific intent; but this does not apply to 
"Desertion," in which a specific intent permanently to abandon the naval service, 
or at least the pending contract of enlistment is impliedly alleged and musi be proved. 
C. M. O.'IO, 1911, 5-6; 5, 1912, 9. See also C. M. O. 10, 1911, 6; File 26251-3252; 
26251-4200; Intent, 1, 2. 



» ABSENCE WITHOUT LEAVE. 

21. Marine Corps enlistment. See Marine Enlistments, 30: Corps, 11. 

22. Officers— Charged with. C. M. O. 3, 1882; 23, 1882; 35, 1883; 34, 1884; 5, 1885; 30, 1885; 

58, 1889; 36, 1892; 42, 1894; 39, 1895; 104, 1896; 5J, 1898; 132, 1897; 86, 1904; 1, 1905; 
53, 1905; 108, 1995; 17, 1996; 51, 1907; 2, 1999; 22, 1999; 56, 1910; 13, 1910; 23, 1910, 
7; 16, 1911; 28, 1911; 19, 1915; G. C. M. Rec. 6142; 6737; 7107; 7217; 6760; 6956; 
11586. Midshipmen cases were as follows: C. M. O. 77, 1905; 67, 1906; 10, 1909. 

23. Same — Found guilty of " Absence from station and duty without leave " may be reduced 

to rating of ordinary seaman. See Reduction in Rating, 24-27. 

24. Pay— Enlisted men acquitted by naval court-martial of desertion, and thereby acquitted 

by implication of tne lesser offense of unauthorized absence, are entitled to pay dur- 
ing the period of their alleged desertion, if such acquittal be approved. C. M. 0. 14, 
1914, 4; 49, 1915, 8. See also Pay, 1, 2. 

25. Paymaster's clerk— Charged with. C. M. O. 3, 1903; 31, 1905; G. C. M. Rec. 12768. 

26. Period— Of the unauthorized absence should be alleged in the specifications, etc. See 

Absence, 10-11; Charges and Specifications, 92; Absence from Station and 
Duty without Leave, 29. 

27. Reduction in Bating— Officers may be reduced to rating of ordinary seaman if found 

guilty of " Absence from station and duty without leave." See Reduction in 
Rating, 24-27. 

28. Specifications— Period or duration of unauthorized absence should be alleged in speci- 

fications, etc. See Absence, 10-11; Charges and Specifications, 92; Absence 
from Station and Duty Without Leave, 29. 

29. Time of beginning — Gist of the offense is the unauthorized absence, and an incorrect 

allegation in the specification of time of beginning of such unauthorized absence is 
not a substantial defect, and such defect is waived by a plea of "guilty." In this 
offense it is the act itself and not the time that is the necessary element . File 26287- 
1125, J. A. G., March 19, 1912. See also Absence, 10, 11; Charges and Specifi- 
cations, 92. 

30. Trial for— When extending over period of enlistment. See Enlistments, 9-11. 

31. Warrant officer— Charged with. C. M. O. 114, 1894; 142, 1897; 164, 1901; 80, 1904; 30, 

1905; 86, 1905; 102, 1905; 62, 1905; 93, 1906; 96, 1906; 65, 1907; 117, 1907; 32, 1910; 17, 
1912; 31, 1912; 11, 1916; G. C. M. Rec. 20746; 20286; 8277; 10015. 

32. Warrant officer, acting— Charged with. C. M. O. 102, 1905; 120, 1907. 

33. Warrant officer (commissioned)— Charged with. C. M. O. 78, 1907; 32, 1912. 

34. "Without leave from proper authority"— Found not proved. Finding disap- 

proved. File 26251-12739, Sec. Navy, Jan. , 1917. 

ABSENCE WITHOUT LEAVE AND OUT OF UNIFORM ASHORE. 

1. Charge criticised by department.— A fleet convening authority preferred this charge 
against an accused. The department stated that it was extremely irregular in that 
it contained more than one offense "of a perfectly distinct nature" (R-712(2), and 
is not phrased in the form prescribed. It is obvious that the court erred when "it 
found the charges and specifications in due form and technically correct." C. M. O. 
35, 1915, 6-7. See also Charges and Specifications, 53. 

ABSENTING HIMSELF FROM HIS COMMAND WITHOUT LEAVE. 

1. Officer— Charged with. C. M. O. 34, 1889. 

ABSENTING HIMSELF FROM HIS POST OF DUTY IN TIME OF DANGER. 

1. Officers— Charged with. C. M. O. 21, 1883; 22, 1883. 

ABUSIVE AND PROFANE LANGUAGE. 

1. Specification of—The objectionable language used by the accused must be set forth in 

the specification alleging its use. C. M. O. 7, 1911, 13. 

2. Under Massachusetts statutes— On this subject. Sec File 26251-2993:12. 

ABUSIVE LANGUAGE TOWARD OTHER PERSONS IN THE NAVY. 

1. Duplicity— Where the accused used abusive language toward three other enlisted 

men, the department stated that the rules of pleading as to duplicity required that 
three separate specifications should have been used, instead of only one. The con- 
vening authority (fleet), after commenting upon several irregularities, approved the 
proceedings, findings, and sentence. C. M. O. 150, 1897, 2-3. See also C. M. O. 160, 
1897, 2. 

2. Wrong phraseology— In the above case the department held that it would have 

been better pleading had each of the three allegations embraced in the one specifica- 
tion been made the basis of a separate specification, and that the charge, to conform 
to the department's practice in such matters, should have been "Using abusive 
language toward another person hi the Navy." C. M. O. 150, 1S97, 3. 



accused. y 

ACADEMIC BOARD OF THE NAVAL ACADEMY. 

1. Ensigns— Appointment of. See Appointments, 17. 

2. Function and duties of— The Academic Board was first given powers with respect 

to the final graduating examination of midshipmen by the act of August 5, 1882 (22 
Stat., 285). The change then made in the law must have been due to a change in 
the regulations of the Naval Academy ; which have now (1910) for many years pro- 
vided that the final graduating examination shall be conducted by the Academic 
Board instead of a special examining board, as was originally the case. File 5252-36, 
J. A. G.,May 5, 1910, p. 6. 

3. Origin, powers, etc. See File 5146, J. A. G., June 23, 1906; 5146:1; 5146:2. 

4. Recommendation of is not final— The recommendation of the Academic Board that 

a midshipman found deficient upon examination for promotion to ensign be dropped 
from the service is not final; but such recommendation may be disapproved by the 
department and the midshipman continued in the service until further reports on 
fitness in his case may be received and considered by the department. File 5252-36, 
J. A. G., May 5, 1910. See alio Comp. Dec, Aug. 23, 1913, 20 Comp. Dec. 141, File 
26254-1277:1, re powerof Academic Board in case of midshipmen found physically 
deficient. 

ACADEMY, NAVAL. See Naval Academy. 

ACCEPTANCE OF RESIGNATIONS. See Resignations. 

ACCESSORIES. 

1. Sentence— Used in. See Weemsu. U.S. (217 U.S., 349); Grafton v. U. S. (206 U. S., 333); 
Navy Regulations, 1913, R-816 (4). See also Sentences, 3. 

ACCIDENT POLICY. 

1. Medical certificate on accident poiicy— Naval surgeons are without authority to 
sign unofficial medical certificates on accident policies of officers. File 26806-15. 
See also File 5195-61:1; C. M. O. 29, 1915, 7; Medical Records, 3-5. 

ACCOMPLICE. 

1. Officer issuing an order — Which is illegal as applied to the existing facts, and does 

so either knowingly or in culpable disregard of what conditions exist, is an accomplice 
in the illegal action taken by his subordinate pursuant to such order. C. M. O. 37, 
1915. 

2. Sodomy. See Sodomy, 6. 

ACCOUNT, NAVAL SUPPLY. See File 24482-31, J. A. G., Feb. 17, 1911; 24482-34, J. A. G. , 
May 1, 1911. 

ACCUMULATION OF OFFENSES. 

1. Offenses— Shall not be allowed to accumulate in order that sufficient matter may thus 

be collectively obtained for a trial, without due notice to the offender. C. M. O. 38, 
1894,2. See also Charges and Specifications, 3. 

2. Plea in bar of trial— On ground that offenses were allowed to accumulate. The plea 

was not allowed by the court. C. M. O. 38, 1894, 2, 3. 

ACCUSED. 

1. Absence of— Naval courts-martial are empowered to require the presence of the ac- 

cused during the entire proceedings and should always exercise this power to avoid 
any possible irregularity. While an irregularity of this character does not necessarily 
invalidate the proceedings, the department looks upon it with great disfavor. C. 
M. O. 51, 1914, 2. See also G. C. M. Rec. No. 21223; 24633; 29422; File 26251-9990:2; 
Simon v. Craft, 182 U.S., 427,435; Frank v. Mangum, 237 U. S., 309; Weinnan v. 
U. S., 36 Ct. Cls., 236; Revision, 1. 

2. Same— The action of a naval general court-martial in permitting the accused, upon a 

request made expressly by himself and not merely by counsel, to be absent from the 
immediate presence of the court during the testimony of expert witnesses for the 
defense concerning the physical and mental condition of the accused, did not invali- 
date the proceedings, such action being due to humanitarian considerations based 
upon representations of counsel for accused as to latter's health, and that it would 
be "cruel" to require his personal attendance during specified portions of the trial. 
C. M. O. 51, 1914, 1-2. See also Accused, 1. 



10 ACCUSED. 

3. Same— The judge advocate should not be present in the court room during closed 

court. However, the presence of the judge advocate when a naval court-martial 
is closed for deliberation, and when the accused, his counsel, and spectators have 
consequently withdrawn, while a grave irregularity and a disregard of Navy Regu- 
lations, 1913, R-787 (3), the provisions of which are directory only and not manda- 
tory, would not necessarilv render the proceedings invalid. C. M. 0. 51, 1914, 1,2; 6, 
1915, 6; 41, 1915, 10; 49, 1915, 10, 12, 14. See also C. M. O. 88, 1895, 12; 1, 1897, 1-2; 
G. C. M. Rec. No. 24633; File 26251-5558; 26251-9996:2; 212 Fed. Rep., 569; Judge 
Advocate, 104, 105. But see C. M. O. 61, 1894, 3; 127, 1900, 1; 216, 1901, 2. 

4. Same— "According to the record the accused was not present when the various wit- 

nesses were called before the court to correct then testimony. Some of the correc- 
tions made showed material changes in the evidence given, and the action of the 
court in conducting this part of the proceedings without the attendance of the ac- 
cused was illegal." In view of this fact and of other irregularities the department 
disapproved the proceedings. C. M. O. 44, 1909. See also G. C. M. Rec. No. 21223. 
But see Accused, 1, 2, holding that such irregularity as this does not necessarily 
invalidate. 

5. Same — If a statement as set forth in a general court-martial record that the accused with- 

drew after completing his testimony, "was a true report of the proceedings followed, 
the subsequent proceedings were illegal in that they were held during the absence of 
the accused." C. M. O. 47, 1910, 7-8; 23, 1910, 5. But see Accused, 1, 2. 

6. Same— The record was returned to the court for revision to correct the record as to the 

notations regarding the arraignment of the accused who had been tried in joinder. 
"The accused were not present at the revision as they should have been, since the 
arraignment occurred in open court." The department because of this irregularity 
and other reasons "accordingly disapproved the proceedings and findings" and "set 
the sentence aside." C. M. O. 78, 1905, 1. But see Accused 1, 2. 

7. Same — Where the record by the omission of an entry on the record fails to show the 

accused present dining a step in the proceedings but the record taken as a whole 
showed him present continuously during the trial, the department held that the irreg- 
ularity was merely a "clerical error." C. M. O. 47, 1910, 7-8; 12, 1911, 3. 

8. Same — Clerical errors in general court-martial records may be amended by the court in 

revision without the presence of the accused. See Record of Proceedings, 26, 27. 

9. Same— Where the court received evidence with reference to a plea in bar of trial, during 

the absence of the accused, the department, while approving the conclusions reached, 
stated " the mode of mtroducing that proof was wholly irregular, and is disapproved." 
G. 0. 152, March 29, 1870. See also Court, 22. 

10. Admissions in open court— Of certain, allegations in the specifications. See Ad- 

missions, 1. 

11. Affidavit— Inadmissible in connection with accused's statement. See Affidavits, 7. 

12. Amenability of, to trial— Statute of limitations having run. See Statute of limi- 

tations. 

13. Arraignment of accused. See Arraignment. 

14. Arrest, released from— Record should show that accused (officer) in proper cases was 

released from arrest and restored to duty. See Arrest, 8, 9, 27. 

15. Caution, to— As to incriminating himself when a witness. See Self-Incrimination, 8. 

16. Same — When resuming his status after testifying. See Witnesses, 10. 

17. Character— Official record of accused is best evidence of his character. C. M. 0. 1, 1914, 

5, 7. See also Evidence, 12. 

18. Same — When evidence as to character of accused may be placed in evidence. See 

Evidence, 12-22. 

19. Same — Witnesses as to character of accused will not be subpoenaed from other stations 

at Government expense. C. M. O. 1,1914,5,7. See also Evidence, 12; Witnesses. 

20. Charges and specifications— Copy of furnished accused. See Charges and Speci- 

fications, 4, 5, 18. 

21. Confession by— When admissible. See Confession. 

22. Constitutional rights of. See Constitutional Rights of Accused. 

23. Continuance— Should be granted accused by court, if request for is reasonable and it is 

practicable to do so. See Continuances. 

24. Convening authority— Action of will be furnished by department upon application 

of accused. CM. O. 21, 1909, 2. See also Accused, 36; Record ov. Proceed- 
ings, 32. 

25. Copy of charges and specifications— Received 10 days before trial. See Charges 

and Specifications, 18. 



ACCUSED. 1 1 

26. Counsel. Sec Counsel. 

27. Crimination. See Self-Incrimination. 

28. Cross-examination— The accused has a right to cross-examine witnesses and the 

record must show that the accused was given the opportunity to cross-examine the 
witnesses against him. See Constitutional Rights of Accused, 16. 

29. Defense of— Precluded by plea of "guilty." See Evidence, 50-53. 

30. Definition of— Use of term "accused" in trials in joinder. See Joinder, Trial in, 14. 

31. Deposition — Prior notice should be given accused of intention to use. See Deposi- 

tion, 1. 

32. Designation and name of accused— Should appear in sentence. See Sentences, 33. 

33. Discharged as undesirable— After acquittal. C. M. O. 11, 1905, 2. 

34. Same— After case was disapproved. C. M. O. 39, 1905, 2; 78, 1905, 1. 

35. Errors without in j ury. See E rror Without Injury. 

36. Findings, sentence, and action of convening authority— Will not be furnished 

the accused until after the publication of the sentence, or, in trials ordered by the 
department, they will be furnished by the department upon application of the 
accused. See Record of Proceedings, 32. 

37. "Guilty," plea of— Waives defects in specifications. See Absence from Station 

and Duty Without Leave, 29. 

38. Same— After plea of " Guilty," accused may introduce only evidence in extenuation, of 

a palliative nature, and of good character. See Evidence, 50-53. 

39. Same— Judge advocate not even to suggest. See Judge Advocate, 34. 

40. Same— Precludes regular defense. See Evidence, 50-53. 

41. Half-witted. See Insanity, 20. 

42. Identity of— Essential in proving fraudulent enlistment. See Fraudulent Enlist- 

ment, 51. 

43. Incrimination. See Self-Incrimination. 

44. Insane. See Insanity. 

45. Irresponsible. See Insanity, 20, 27. 

46. Joinder— Trial in. See Joinder, Trial in. 

47. Judge Advocate— Relation to accused before and during trial. See Judge Advocate, 

25, 28-44, 86. 

48. Mute— When arraigned. See Arraignment, 18-24. 

49. Name and designation of accused— Should appear in sentence. See Sentences, 33. 

50. Name of accused— Middle name may be abbreviated in specifications. See Abbrevia- 

tion, 1. 

51. Offense— More serious if committed by officer on duty at Naval Academy. C. M. 0. 14, 

1915. 

52. Same— More serious^ when committed by an accused of long service and who has been 

entrusted by his superiors with a position of responsibility, as an offense committed 
by such a man has a far more detrimental effect upon the naA* al service because of 
the example which he thereby sets his subordinates and others likely to be influenced 
by his misconduct. C. M. O. 1, 1914, 8. 

53. Pay, forfeiture of— Should, in general, be remitted only as an act of clemency to 

accused. See Allotments, 6; Pay, 23. 

54. Pay account of — A statement of the pay account status of an accused is not contem- 

plated in the procedure for general courts-martial, and is made a part of summary 
court-martial procedure merely as an aid to such a court-martial in preventing ah 
excessive or illegal sentence. C. M. O. 28, 1910, 4. See also File 3980-1051. 

55. Physical condition of— Court should not consider in adjudging sentence. See 

Clemency, 41, 42. 

56. Plea of guilty— Waives defects in specifications. See Absence from Station and 

Duty Without Leave 29. 

57. Sentence— Will be furnished by department upon application of accused. See 

Accused, 36; Record of Proceedings, 32. 

58. Statement in presence of accused— Admissible in evidence. C. M. O. 214, 1902. 

See also Desertion, 125; Statements Made in Presence of Accused. 

59. Statement of accused. See Statement of Accused. 

60. Testimony of— The testimony of the accused unsupported by other corroborative 

evidence should not be accorded entire credit. See Witnesses, 4, 7. 

61. Trial— Accused is solely responsible for informing his natural or legal guardians or rela- 

tives of the fact that he is to be tried by general court-martial. C. M. O. 27, 1915, 10. 
See also Charges and Specification's, IS. 

62. Warning — It is not necessary that the accused should be warned that any statement 

he might make would be used against him as evidence. Sec Confessions, 26/27. 



12 ACCUSED. 

63. Same— It is improper and contrary to the Navy Regulations to warn or caution the 

accused, after he has been a witness, not to converse upon matters pertaining to the 
trial. See Witnesses, 10. 

64. Same— Accused should be warned as to the effects of his plea of "guilty"— Where this 

was not done the department disapproved. C. M. O. 47, 1892; 84, 1894, 3. See also 
C M. O. 5, 1911, 4; Warning, 2. Note.— This irregularity is not, in general, nec- 
essarily fatal. 

65. Withdrawal of. See Accused, 5. 

66. Witness— Accused as witness. See Witnesses, 1-11. 

67. Youth— Of accused as grounds for clemency. See Clemency, 67-71. 

ACCUSER. 

1. Court of inquiry— Accuser can not demand a copy of the record. See Courts of 
Inquiry, 1, 12. 

ACQUITTAL. 

1. Absence, authorized— Approval of acquittal of unauthorized absence entitles accused 

to pay during such absence. See Pay, 1. See also Confinement, 7; Desertion, 9. 

2. Same — Acquittal of desertion is also acquittal of absence from station and duty without 

leave. C. M. 0. 14, 1914, 4-5. See also Absence from Station and Duty Without 
Leave, 14; Desertion, 9; Pay, 1. 

3. Same— Acquittal of a charge of unauthorized absence is also an acquittal of desertion. 

Finding of "absence from station and duty without leave" on a charge of "de- 
sertion" is an acquittal of "desertion." C M. O. 17, 1910, 8-10. See also Absence 
from Station and Duty Without Leave, 18; Desertion, 6. 

4. Arrest and acquittal by civil authorities— As a defense. See Absence from Station 

and Duty after Leave Had Expired, 3,4. 

5. Authorized forms of acquittal— There are only four authorized forms of acquittal in 

naval court-martial procedure: (a) Simple acquittal, (6) "fully acquit," (c) "honor- 
ably acquit," (d) "most fully and honorably acquit." The foregoing supersedes the 
forms of acquittal given in Forms of Procedure, 1910, p. 40, and the use of any other 
form is prohibited. C. M. O. 29, 1916, 2-3. 

6. Court-martial orders— Published where officers acquitted of all charges (File 26504- 

189. Sec. Navy, Mar. 18, 1910, overruled). C. M. O. 26, 1906; 4, 1908; 5, 1908; 35, 1908; 
32, 1915; 36, 1915; 38, 1915; 41, 1915; 21, 1916; 40, 1916. See also Acquittal, 24; 
Court-Martial Orders, 1. 

7. Disapproval of findings and acquittal— In cases of officers. CM. O. 44, 1883, 5; 3, 

1884, 3; 14, 1914, £; 29, 1914, 10; 32, 1915; 38, 1915, 5; 41, 1915; 24, 1916, 5. 

8. Same — In cases of commissioned warrant officers. C. M. O. 28, 1915, 3; 36, 1915. 

9. Same— Because the judge advocate tried case out of court. C. M. O. 42, 1915, 8. 

10. Same — Department disapproved the findings and acquittal as an approval might mis- 

lead courts-martial. C. M. O. 14, 1914, 5-6; 29, 1914, 10. See also C. M. O. 41, 1885. 

11. Dismissal— Acquittal of accused (paymaster's clerk) approved but accused dismissed 

from naval service. C. M. O. 160, 1901. But see C. M. O. 15. 1902. 

12. Embezzlement— Effect of acquittal on the financial responsibility of accused. CM. O. 

39, 1913, 11. See also Embezzlement, 25. 

13. "Entirely"— Court did "entirely acquit" accused. C. M. O. 115. 1894. 

14. Finding of "Not guilty"— Should be followed by a statement of acquittal. See Find- 

ings, 63. 

15. "Fully acquit." C. M. O. 44, 1883, 3; 32, 1909; 41, 1909; 29, 1916; G. C M. Rec. No. 

31423. 

The use of tbis form of acquittal indicates that a court not only fails to find a charge 
proved beyond a reasonable doubt, but that it finds no facts whatever, as brought 
out by the evidence introduced in the case, which reflect adversely on the conduct 
of the accused in connection with matters pertaining to the charge and specification. 
In other words, a court should not "fully acquit" in cases where the record shows 
any uncontroverted facts whatever reflecting upon the accused. C. M. O. 29, 1916, 2. 

16. "Fully and honorably." See Criticism of Courts-Martial, 22; File 20251-12159. 

17. Handwriting— An acquittal should be recorded in the handwriting of the judge advo- 

cate. C M. O. 29, 1914, 5. 

18. "Honorably acquit." G. 0. 118, Mar. 27, 1869; C. M. O. 28, 1882. 

This form is to be employed only in cases where the offense charged is, besides 
being an offense against military authority, of such a character that a conviction 
thereof would tend to dishonor the accused, such as, for example, a charge of "Con- 



ACQUITTAL. 13 

duct unbecoming an officer and a gentleman." This acquittal, as in the case of a 
full acquittal, should never be used if the record shows any adverse, uncontro- 
verted evidence reflecting upon the accused. C. M. O. 29, 1916,2. 

19. "Most fully and honorably." C. M. O. 214, 1901; 38, 1905, 2; 5, 1913, 2, 7, 12, 13; 27, 

1913, 6; 41, 1915; File 26251-12159, Sec. Navy, Oct. 7, 1916, p. 6; Debts, 24. 

20. Same— The court not only acquitted the accused but did "most fully and honorably 

acquit " him, this being the very highest degree of the six different forms of acquittal 
known to naval procedure. By such action the court in effect puts the highest 
stamp of approval upon the actions of the accused. (C. M. O. 5, 1913; 27, 1913, 9; 
File 26251-7776.) An acquittal of this character would mean not only that the 
accused was blameless but that his conduct was creditable, and that he was not 
only not negligent, but that he zealously guarded the interests of the Government 
at all times. C. M. O. 41, 1915, 11. 

This form should be used only in extreme cases, in which not only have the 
requirements of "full" and "honorable" acquittals been fulfilled, but in which the 
court wishes to place the highest stamp of approval upon the actions of the accused 
in connection with the matters covered by the specifications. The use of this form 
of acquittal might, for example, be justified in the case of an officer charged with 
unbecoming conduct in battle if the court wished to make it a matter of record that, 
far from considering the conduct of such officer censurable, it both approved and 
commended his conduct. (For examples of an improper use of this form of acquittal, 
see C. M. O. 5, 1913, 3; 27, 1913, 9; 41, 1915, 11.) C. M. O. 29, 1916,2. 

It will be noted that there is no legal distinction between a simple acquittal and 
one to which one of the additional expressions or embellishments has been added, 
and it is to be emphasized that only in exceptional cases is the use of any form of 
acquittal other than the simple acquittal justified. Unless this rule be strictly 
adhered to and other forms of acquittal reserved for special cases, the distinction 
drawn between the various forms will be lost, and not only would a simple ac- 
quittal be robbed of its full absolving significance, but also the proper purposes for 
which the other forms of acquittal are reserved would be defeated. C. M. O. 29, 
1916,3. 

21. "Not guilty" — If the finding is "not guilty" upon any charge, the explicit statement 

should immediately follow that the court acquits the accused of such charge. See 
Findings, 63. 

22. Officers acquitted — Of some but not all of the charges against them. C. M. O. 26, 

1909; 27, 1909; 32, 1909; 41, 1909; 44, 1909; 52, 1910; 5, 1913; 7, 1914, 3; 10, 1914; 50, 
1914; 33, 1915; 1, 1916. 

23. Same— Of all charges. C. M. O. 26, 1906; 5, 1908; 35, 1908; 26, 1909; 44, 1909; 32, 1915; 38, 

1915; 41, 1915; 21, 1916; 40,1916; 43,1916. 

24. Same — Court-martial orders shall be published where officers are acquitted of all the 

charges (File 26504-189. Sec. Navy, Mar. 18, 1910, overruled). See Acquittal, 6; 
Court-Martial Orders, 1. 

25. "Proved but without criminality"— Is virtually a form of acquittal and is not to be 

encouraged. C. M. O. 10, 1911, 5; 10, 1913, 3-5. 

26. Setting aside— There is no power to set aside the verdict of acquittal, and the accused 

is entitled by law to the full benefit of it. C. M. O. 101, 1903, 10. 

27. Simple acquittal— This form, which will be referred to as a simple acquittal, should 

be used in all cases except in the three special cases (Acquittal, 5). The use ol 
this form sufficiently records the fact that the court has not sustained the charge 
and has the same legal effect as an acquittal expressed with some embellishment. 
CM. 0.29,1916,2. 

28. Warrant officers (commissioned) acquitted— Acquitted of some but not all of the 

charges against them. C. M. O. 23, 1915; 28, 1915. See also C. M. 0. 28, 1916. 

29. Same— Of all charges. C. M. O. 36, 1915. 

30. Without prosecution — Where the accused pleaded "Not guilty" and the recorder 

stated that there were no witnesses available to prove the offense, and recommended 
that the court accept the plea of the accused, the department held that a finding 
which acquitted the accused was improper and irregular and that the trial should 
have been postponed until witnesses were available. C. M. O. 42, 1909. 15-16. 

31. Witnesses— A court-martial order was published in the case of an officer who was 

acquitted and contained this notation: "The publication of this general court- 
martial order carries with it no reflection upon any witness who testified before the 
court." C. M. O. 214, 1901. 



14 ACTIXG JUDGE ADVOCATE. 

ACTING APPOINTMENTS. 

1. Honors due an officer— Navy Regulations, 1905, R-46, respecting honors due an 
officer while serving under an acting appointment was held to apply to an Acting 
Commandant and Governor of an insular possession of the United States. File 
4451. See also Guam, 1. 

ACTING ASSISTANT DENTAL SURGEONS. See also Dental Surgeons, 2. 
1. Appointment of— An acting assistant dental surgeon for temporary service, who 
had originally requested permission to be examined for an appointment as acting 
assistant dental surgeon for temporary service and who upon examination had 
failed physically (general obesity), which disability had been waived because "the 
appointment is for temporary service," requested that the temporary appointment, 
be made permanent. In view of the entire dissimilarity in the status of an "acting 
assistant dental surgeon for temporary service" as compared with one of permanent 
* tenure, it was held that the present "temporary appointment" of this officer could 
not be made "permanent" from the date of entry in the service, but that he may 
be legally authorized to undergo examination for an original appointment in the 
same manner as if he did not hold his present appointment for temporary service. 
File 13707-46, J. A. G., Mar. 19, 1915; C. M. O. 12, 1915, 8. See also Act of Aug. 29, 
1916. 

ACTING ASSISTANT SURGEONS. 

1. Appointment of— The law authorizing the appointment of acting assistant surgeons 

reads in part as follows: 

" The President is hereby authorized to appoint for temporary sendee 25 acting 
assistant surgeons, who shall have the relative rank and compensation of assistant 
surgeons.". (30 Stat. 380.) File 28407-13, J. A. G., Mar. 24, 1915; C. M. O. 12, 1915, 10. 
See also Medical Reserve Corps of the Navy, 1. 

2. Same— A candidate who fails by a small margin in his examination for appointment 

as acting assistant surgeon may be given an appointment as such witho'ut further 
examination, should the department so desire, there being nothing in the Navy 
Regulations concerning such appointment or examination, and any provisions in 
circulars issued by the department may be waived by the department at any time. 
File 15229-6, J. A. G., May 15 1911. 

3. Death gratuity— The term "officer or enlisted man" in act of May 13, 1908 (35 Stat. 

128) includes all persons in the service and applies to acting assistant surgeons. File 
26543-10, Sec. Navy, Sept. 11, 1908. 

4. Marine examining boards— Acting assistant surgeons are not "medical officers of 

the Navv" within the provisions of section 1621, R. S., but are officers in the tem- 
porary service of the Navy. (See Taylor v. U. S.,38 Ct. Cls.155.) Therefore such 
officers are not eligible for duty as members of a marine examining board. File 
947-M. 

5. Medical Reserve Corps— Appointment of Medical Reserve Corps officers as acting 

assistant surgeons. See Medical Reserve Corps of the Navy, 1. 

6. Retirement. See Retirements of Officers. 2. 

7. Status of, in 1865— From the language of the act of July 24, 1861 (12 Stat. 273), acting 

assistant surgeons served under temporary acting "appointments made bv the 
Secretary of the Navy for a limited time, either "until the return of the vessels in 
which they are respectively employed, or until the suppression of the present in- 
surrection."" Thev received the same pay as assistant surgeons; thev were entitled 
to wear the uniform of the grade to which appointed; and to annex the title of their 
acting rank to their official signatures. While these officers, therefore, were not 
commissioned, thev nevertheless occupied the status of officers of the volunteer 
Navy; they were not enlisted men. File 26510-579, J. A. G., Oct. 25, 1911. 

ACTING BOATSWAINS. 

1. General court-martial— Tried bv. C. M. O. 102, 1905; 105, 1905. 

2. Sentence of dismissal— Confirmed by President. C. M. O. 102, 1905. 

ACTING GOVERNOR. 

1. Guam. See Acting Appointments, 1; Commandants of Navy Yards and Naval 
Stations, 1, 2; Guam, 1. 

ACTING GUNNER. 

1. General court-martial— Tried by. C. M. O. 3, 1911, 1. 

ACTING JUDGE ADVOCATE. See Judge Advocate General, 1. 



ADDITIONAL CHARGES AND SPECIFICATIONS. 15 

ACTING JUDGE ADVOCATE GENERAL. See Judge Advocate General, 2,3,18. 

ACTING MACHINISTS. 
1. Status of— Pending the issuance of a warrant the status of an acting machinist unques- 
tionably continues to be that of an enlisted man, although at the same time acting 
as a warrant officer, and he is therefore entitled to draw interest on his deposits or 
to make additional deposits in accordance with the act of February 9, 1884 (25 
Stat. 657). File 26254-2020, Sec. Navy, June 6, 1916. See also Deposits, 1,4. 

ACTING MASTER'S MATE. 
1. Dismissal of. File 26367-2, J. A. G., July 8, 1909. 

ACTING PAY CLERKS. 
1. Appointment of— Under provisions of act of March 3, 1915 (38 Stat. 942). C. M. O. 
12, 1915, 13; 29, 1915, 8; 31, 1915, 5. See also Pay Clerks and Chief Pay Clerks, 
1-3,7. 

ACTING SECRETARY OF THE NAVY. See Precedence, 29; Secretary of the 
Navy, 3. 

ACTING WARRANT OFFICERS. 

1. Appointment of. See Pay Clerks and Chief Pay Clerks, 1-3,7. 

2. Deposits. See Acting Machinists, 1; Deposits, 1,4. 

3. General courts-martial. See Acting Boatswains; Acting Gunners. 

4. Reenlistment— Inasmuch as R. S. 1409 clearly contemplates the concurrence of the 

status, duties, and obligations of an enlisted man, and that of a warrant officer, 
and in view of the practice of the Bureau of Navigation in the matter, no objection 
is perceived to the reenlistment of an acting warrant officer whose term of four years 
has expired. (This with view to preserving for the man his continuous service 
should he fail to be warranted.) ' File 7267-03, J. A. G. 

5. Status of. See Acting Machinists, 1. 

ACTION. 

1. Convening authority. See Convening Authority. 

2. President. See President of the United States. 

3. Record of proceedings— Action on— Right of accused to. See Charges and Speci- 

fications, 4, 5, 18; Record of Proceedings, 32. 

4. Reviewing authority. See Reviewing Authority. 

5. Revising authority.' See President of the United States; Reviewing Authority; 

Revising Authority; Secretary of the Navy; Senior Officer Present. 

6. Secretary of the Navy. See Secretary of the Navy. 

7. Senior officer present. See Senior Officer Present. 

8. Withheld— Desertion case — What constitutes conviction. See Pay. 

ACTIONS. 

1. Intentions— The law judges a man's intentions by his actions. C. M. O. 29, 1914, 9. 

ACTS. ■ 

1. Desertion — Acts of accused during unauthorized absence may create a presumption of 

specific intent to desert. See Desertion, 10, 62. 

2. Intentions— The law judges a man's intentions by his acts. C. M. O. 29, 1914, 9. See 

also Desertions, 72. 

3. Natural consequences— It should be remembered that in all well-organized society 

every man of sound mind is and must be assumed to intend the natural and necessary 
consequences of his own deliberate acts. Without this imperative legal principle 
the order of civil society could not be preserved, and the sanction of military disci- 
pline and the efficiency of all military organizations would depend upon the personal 
theories and opinions, however crude, of the individuals who compose them. G. O. 
182, Apr. 2, 1873. Seealso C. M. 0. 19, 1912, 7. 

ADDITIONAL CHARGES AND SPECIFICATIONS. 

1. Army— Difference between Army and Navy— In applying to naval courts-martial by 
analogy decisions in cases tried by courts-martial of the Army care must always be 
taken to note differences in the laws governing court-martial procedure in "those 
branches of the service. With reference to naval courts-martial, it will be noted 
from A. G. N. 43 that the law plainly contemplates the trial of additional charges at 
the same time, where such additional charges, as in this case, are preferred under 
conditions specified in the statute. 

50756°— 17 1 



16 ADDITIONAL CHARGES AND SPECIFICATIONS. 

The objections stated in Dudley's Military Law, etc. (par. 127, p. 66), and "Win- 
throp's Military Law and Precedents (Vol. 1, Sec. VII, p. 225) do not apply to 
cases tried before naval courts-martial, as the oath used by naval ccurts-martial 
differs from that used by the Army courts-martial. The law (art. 43, A. G. N.) 
expressly provides that the accused shall be allowed a reasonable time to make his 
defense against additional charges. 

The oath auministered to members of general courts-martial in the Navy is broader 
in its terms than that used in the Army, the latter relating merely to "the matter 
now before you," while in the Navy the oath relates to "the case how depending," 
which includes all charges and specifications which may legally be preferred against 
the accused, whether at the time he is placed under arrest or subsequently at any 
time before his case is disposed of by the court. C. M. 0. 10, 1913, 7-8. See also File 
26251-8539:1, J. A. G., Jan. 21, 1914; 26262-1194, p. 6. 

2. Oath— Where additional charges and specifications are preferred after arraignment no 

legal objection could exist to swearing members again as to the additional charges 
and specifications, and as a matter of precaution it might be advisable that such pro- 
cedure be followed. File 26261-1822:9. 

3. Preferred after arraignment— An accused was brought to trial by general court- 

martial (file 26251-6822:9) by order of the Secretary of the Navy, "ft hile the trial 
was in progress information reached the department concerning additional mis- 
conduct by the accused. An additional charge predicated upon that offense was 
preferred against the accused and forwarded to the judge advocate of the court, the 
department's order expressly stating that the intelligence of such additional charge 
did not reach the department until after the accused was put under arrest. Upon 
presentment thereof by the judge advocate, the court decided that it was 
without jurisdiction in the premises and the judge advocate was directed to return 
the additional charge to the convening authority. The letter returning the addi- 
tional charge cited as the court's authority for its action, Dudley's Military Law, 
etc. (par. 127, p. 66), and Winthrop's Military Law and Precedents (Vol. I, Sec. VII, 
p. 225). 

The department held that the objections stated by the court do not apply to the 
present case tried before a naval court-martial. The law (art. 43, A.G.N.) expressly 
provides that the accused shall be allowed a reasonable time to make his defense 
against additional charges. 

The oath administered to members of general courts-martial in the Navy is 
broader in its terms than that used in the Army, the latter relating merely to ''the 
matter new before you," while in the Navy the oath relates to ''the case now depend- 
ing," which includes all charges and specifications which may legally be preferred 
against the accused, whether at the time he is placed under arrest or subsequently 
at any time before his case is disposed of by the court. 

The additional charge preferred against this accused was expressly stated to te an 
"additional charge " (or a part of " the case now depending ") and not a separate charge 
to be tried in an independent proceeding. 

This officer was dismissed on the original charges and specifications without con- 
sidering the additional ones. The department thereupon addressed a communica- 
tion to'the president of the court with the direction that the remarks be referred 
to the members and judge advocate of the court for their information. C. M. O. 
10, 1913, 7-8. Sec also C. M. O. 7, 1913. 

4. Same— Original charges and specifications were preferred on December 1, 1913, accused 

was arraigned on January 5, 1914, and additional charges and specifications, intelli- 
ligence of which did not reach the convening authority until January 6, 1914, were 
preferred on January 7, 1914. C. M. O. 27, 1914. 

5. Same— An accused warrant officer was tried by general court-martial April 16, 1912, 

on charges preferred April 4, 1912, found guilty of "Absence from station : nd duty 
without leave" and "Drunkenness on duty," and a sentence adjudged. The 
department on April 11, 1912, preferred two additional charges with one specifica- 
tion under each charge. The court tried the accused on the two additional charges 
and specifications in a separate trial, and sentenced the accused to dismissal. 
C. M. O. 17, 1912; G. C. M. Rec No. 25187. 

6. Same— Enlisted men— Additional charges sent to court before trial on original charges 

ana specifications. G. C. M. Rec. No. 31329; 31400; 31402. 

7. Same — Officer tried upon the charges of "Scandalous conduct tending to the destruc- 

tion of good morals and naval discipline" and "Embezzlement," and upon an 
"additional charge," preferred after the commencement of his trial, of "Neglect of 
duty." G. O. 162, Mar. 25, 1871. 



ADDITIONAL CHARGES AND SPECIFICATIONS. 17 

8. Preferred before arraignment— One additional charge with two specifications there- 

under were preferred against the accused before arraignment. He was arraigned 
upon the original and the additional charges and specifications at the same time. 
(G. C. M. Rec. 6174.) C. M. O. 56, 1880, 3-5. " 

9. Same — In the case of an accuse! ensign additional charges and specifications were pre- 

ferred against the accused prior to arraignment and received by him 10 minutes before 
he was brought to trial on the original charges and specifications. T he accused stated 
that he was ready for trial on the additional charges and specifications. Defense 
desired to have the original charges and specifications disposed of before being 
arraigned on the additional ones. The accused was arraigned on the original charges 
and specifications, the record showing this entry: " Tae judge advocate: If the 
court please, as I understand it, the court permits the accused to defer pleading to 
the additional charges and specifications until some subsequent time? The court: 
They may have time for that. " The trial then proceeded on the original charges and 
specifications. The accused later pleaded to the additional charges and specifi- 
cations. Findings on all charges and specifications were arrived at by court at 
proper time. (G. C. M. Rec. 7771.) G. M. O. 23, 1895. 
10. Same — In the case of an accused chaplain charges and specifications were preferred by 
the department and transmitted to the general court-martial before which the 
accused was to be tried, by letter dated July 24, 1907. Thereafter (July 29, 1907) 
nine additional charges and specifications were preferred against the accused and 
transmitted to the same court by separate letter. At the trial, August 5, 1907, the 
accused was arraigned at the same time upon both the original and additional 
charges and specifications, which were tried together. This procedure was in 
accordance with the precedents of the department and authorities on military law. 
G. C. M. Rec. No. 16323. See also File 26251-4794, J. A. G., June 6, 1911; C. M. O. 
74, 1907. 

ADDITIONAL NUMBERS. 

1. Promotion of— The practice of making officers additional numbers in their grade is fol- 

lowed by Congress only where for good and sufficient reasons it is desired that such 
officers shall not delay the promotion of others who are their juniors. In other words, 
the provision that an officer shall be an additional number in his grade is not intended 
for his benefit, but is intended to facilitate the promotion of others below him on the 
list; and unless Congress uses language clearly indicating its intention that the officer 
so made an additional number is to be promoted at an earlier date than he would 
otherwise have been entitled to promotion , that is to say, on the same date as the officer 
next above him on the list, the department has held that he should be promoted only 
from the date on which his position would have entitled him to promotion had he 
not been made an additional number. The additional-number officer is not pro- 
moted either with the officer next below him or with the officer next above him, but 
is promoted precisely as he would be if he were not an additional number, only his 
promotion does not operate to delay the promotion of junior officers. It can make 
no difference to the additional-number officer how many junior officers may be pro- 
moted at the same time; his promotion is in no way delayed thereby. I ile 11130-26, 
Sec. Navy, Jan. 8, 1915; C. M. O. 6, 1915, 10. Seealso File 11130-23, Sec. Navy, Feb. 25, 
1914; 11130-24, Feb. 25, 1914; 11130-25, Mar. 4, 1914; 11130-5. J. A. G., Nov. 24, 1909; 
26254-655; Bu. Nav.; File 1511-40, See. Navy, Jan. 1, 14, 1911; Bureau Chiefs, 8. 

2. Sentence of general court-martial— Additional numbers should be included in count- 

ing the numbers which an officer has been sentenced to be reduced by general court- 
martial. File 4S05-5, June 26, 1906. 

ADDITIONAL PAY. See Pay, 7, 8. 

ADDITIONAL PUNISHMENT. 

1. Secretary of the Navy— lias the authority to remit but not to commute the sentence, 
and therefore not to increase the punishment. While the reviewing authority may 
remit any part of the sentence imposed he cannot add to the sentence by imposing 
an additional forfeiture. C. M. O. 17, 1910, 8; File 25675-9, 10, 11, Sec. Navy, Oct. 2S, 
1915. See also Commuting Sentences; Secretary of the Navy, 54, 56. 

ADDRESS. 

1. Desertion— Change of address of accused during unauthorized absence without notice 
to naval authorities may create an inference of specific intent to desert. See 
Desertion, 111. 



18 ADDEESS. 

2. Furlough— Duty of enlisted men on furlough to notify commanding officer of change of 

address. C. M. O. 33, 1914, 7. 

3. Witness lees— On May 4, 1909, the following instructions were issued: 

'• It is directs 1 tnat, in tne preparation ox claims for witness fees for the attendance 
of civilian witnesses before naval courts-martial, the post-oxnce addresses of such 
claimants be entered upon the certificate prepared by the judge advocate of the court; 
and a copy of the subpoena need not be attached to tlie certificate. C.M.O. 21, 1909,3. 

ADEQUATE SENTENCES. 

1. Clemency extended— By court in adjudging an inadequate sentence, department can 

not. See Clemency, 54. 

2. Commensurate — A sentence should be adiudeed in each case which is commensurate 

with the nature of the offense charged. C. W. 0. 23, 1912, 3. 

3. Congress— •'Congress, as shown by us legislation on the subject, has evidently not been 

willing to intrust the power of exercising ciemency to courts-martial, but has pre- 
ferred to repose such power in the Secretary of the Navy, who is charged with the 
administration oi the entire Navy. Accordingly, when a naval court-martial under- 
takes to adjudge a lenient sentence in a case where it has found the accused guilty of 
a serious charge such court is attempting to usurp a function which Congress has 
expressly withheld from it and has delegated to higher authority." C. M. O. 2S, 
1913, 6. 

4. Courts-martial— It is made by law the duty of courts-martial, in ail cases of conviction, 

to adjudge a punishment adequate to the nature and degree of the offense committed. 
If mitigating circumstances have appeared during the triax, which could not be 
taken into consideration in determining the degree of guilt found by the verdict, the 
court may avail itself of such circumstances as adequate grounds for recommending 
the prisoner to clemency. (R-Sll.) 

5. Same— The law does not vest in courts-martial the pardming power, nor the right to ad- 

judge nominal punishments equivalent to apardon. The power to remit or mitigate 
is expressly vested in the President of the United States or the office* authorized 
to convene the court. The exercise of this power by a court-martial is thereforeillegal. 
(R-S08.) C. M. O. 42, 1892. See also C. M. O. 22, 1SS4, 2; 30, 1SS5, 3; 35, 1892, 11; 51, 
1S93, 2; 9, 1897, 9; 89, 1S97; 107, 1897; 132, 1897, 2; 12, 1900; 67, 1902. 

6. Same — The law enjoins upon courts-martial '•in all cases of conviction to adjudge a 

punishment adequate to the character and nature of the offense committed.'' It 
leaves it discretionary with a court-martial "to recommend the person convicted to 
clemency; this clemency, however, is to be exercised not by the court, but by the 
revising power or the President of the United States, who are expressly clothed" with 
the power to mitigate or remit punishment. 
"In all these provisions the law is clear, precise, and free from ambiguity." 
It may be that the court, or members of it, deemed the law under which the 
accused was arraigned one of a harsh character; but even admitting that it be so, it 
is still law, and they were bound by a solemn obligation to administer it as it stands, 
and not to modify it so that it might accord with then own notions of justice. They 
had no more authority to do so than to repeal the law. G. O. 68, Dec. 6, 1865. 

7. Same— ''Courts-martial are required by law (Art. 51, A. G. N.) to impose an adequate 

sentence, the members of the court as individuals being permitted to recommend the 
accused to the clemency if, in their opinion, extenuating circumstances exist and 
warrant such recommendation." C. M. O. 4, 1913, 53. See also C. M. O. 67, 1902; 
28, 1913, 5; 37, 1914. 

8. Same — ''The sentence of the court in this instance is considered by the department to 

be so light as barely to comply with that provision of the law requiring courts- 
martial to adjudge punishments adequate to the offense committed." C. M. O. 20, 
1909, 1. 

9. Same—" The law makes it the duty of courts-martial in all cases of conviction to adjudge 

punishment adequate to the nature of the offense." CM. O. 49, 1910, 12. 

10. Same— In one case the department stated in part as follows: The sentence of the court 

"can hardly be regarded as a compliance with the statutory requirement that 
courts-martial in all cases of conviction adjudge an adeqtxate sentence, and the 
department is forced to conclude that the court in adjudging such a lenient sen- 
tence has encroached upon the prerogatives of the Secretary of the Navy by exer- 
cising clemency, as this power is" vested by law not in courts" but in the convening 
authority. C. M. O. 1, 1914, 8. 



ADEQUATE SENTENCES. 19 

11. Same — " The convening authority is entirely unable to understand the mental atti- 

tude of an officer who, as a member of a court-martial that has convicted another 
officer of deliberate falsehood, could vote to award such a ludicrously inadequate 
punishment, thus forcing his brother officers and himself to continue to associate 
with an officer who has been proven guilty of deliberately and knowingly making a 
false statement in writing in an official report to the commander in chief." C. M. O. 
10, 1908, 5-6. 

12. Same — The convening authority (fleet) stated that he approved the sentence "against 

my conviction that it is entirely inadequate to the nature of the offenses, for the 
reason" that the accused would otherwise go unpunished. C. M. O. 30, 1885, 3. 
See also C. M. O. 22, 1884, 2. 

13. Same— Where a general court-martial adjudged an inadequate sentence, the con- 

vening authority (fleet) remarked that "the court has shown by its sentence that 
at least a majority of its members are disposed to trifle with the authority which 
the people of the United States, through "their Representatives in Congress, have 
confided to their naval officers." The department added: "While the commis- 
sioned officers of the court hold in such light estimation the discipline of the Navy, 
and have such mild ideas as to the gravity of offenses committed against its laws, 
the subordinates in all degrees can not be expected to consider them more seriously." 
C. M. O. 57, 1895, 2-3; 58, 1895, 2-3. See also C. M. O. 36, 1905, 3; 10, 1912, 8; 14, 
1913, 5; 22, 1913, 5; Criticism of Courts-Martial, 11, 35. 

14. Same — Where the sentence was considered inadequate the department stated: "The 

department considered the sentence awarded by the court in this case entirely 
too light and inadequate for the gravity of the offense committed and directed 
the convening authority to so inform the president and members." C. M. O. 6, 
1912, 2. 

15. Same— A sentence was disapproved by the Secretary of the Navy as inadequate, 

the Secretary saying: "Yet the public is to be informed that a court of officers of 
the Navy consider this capital offense, attended by no circumstances of mitigation, 
sufficiently punished by suspension from duty for six months without pay, and 
with pay for the same period, the latter being equivalent to leave of absence for 
six months. The department declines to outrage public opinion and its own sense 
of justice, or to mislead the younger officers of the Navy, by approving a sentence 
so glaringly inadequate. G. O. 58, June 29, 1865. See also File 7719-03. 
16 Same— The members' of any naval court-martial who fail to adjudge a substantial 
punishment for the offense of "Neglect of duty" are lacking in the appreciation 
of the full requirements imposed by command. File 26262-2214, Sec. Navy, Mar. 
10, 1915. 

17. Same— The convening authority (fleet) stated: After a careful review of the foregoing 

case, the commander in chief can not but express his surprise that a court composed 
of responsible officers should adjudge such a wholly inadequate sentence after 
finding the accused [officer] guilty of "neglect of duty," which neglect probably 
resulted in serious damage to the ship. C. M. O. 9, 1913, 3. 

18. Same—" The sentence, as stated, does not appear to be adequate to the nature of the 

offense, which is a plain and flagrant violation of a very salutary provision of law 
with which every officer is assumed to be familiar." C. M. O. 7, 1901, 2. 

19. Same— The convening authority (fleet) returned the record for revision of the sentence 

as in his opinion it was inadequate. In revision the court revoked its sentence and 
substituted therefor another. The convening authority again returned, calling 
attention to the fact that the second sentence was less than the first. In revision 
the court revoked its second sentence and adjudged a third sentence. The conven- 
ing authority noted that in awarding its final sentence the court changed the form 
but not the substance of its original sentence, and that, attention having twice been 
called to the inadequacy of the sentence, the court entirely failed to realize its respon- 
sibilities to the naval service, and subsequent to these remarks approved the pro- 
ceedings and findings and, in order that the accused might not en1 irely escape pun- 
ishment, the sentence. The department concurred in the remarks of the convening 
authority relative to the inadequacy of sentence. The record of the accused (a chief 
boatswain), which was before the court, shows that he has been twice tried and 
convicted for similar offenses involving drunkenness. The department, therefore, 
feels that to permit the accused to continue in the service as a commissioned officer 
is adverse to the interests of justice and discipline, and that the action of the court 
has resulted in a miscarriage of justice. C. M. O. 21, 1916. 



20 ADEQUATE SENTENCES. 

20. Same— The department approved the recommendation contained in the following 

indorsement placed upon a general court-martial record by the Chief of the Bureau 
of Navigation: '-The bureau can not understand how a court composed of officers 
of experience and judgment could fail to appreciate the seriousness of this offense, 
and it is recommended that the president and members of tne court be informed 
that their action has resulted in a miscarriage of justice." C. M. O. 12, 1310, 2. 

21. Court-martial orders— Have commented upon sentences being inadequate. C. M. O. 

29, 1909, 2; 46, 1910, 1; 47, 1910, 7; 49, 1910, 12, 16; 51, 1910, 2; 12, 1910. 2; 11, 1911, 7; 
7, 1912, 3; 8, 1912, 3; 11, 1912, 2; 14, 1912, 2; 16. 1912, 3; 28, 1912, 3; 37, 1912, 2; 1, 1913, 
4, 7; 4, 1913, 53; 10, 1313, 5; 16, 1913, 3; 20, 1913; 4; 23, 1913, 15; 26, 1913, 1; 28, 1913, 5; 
32, 1913, 2; 36, 1913, 1; 39, 1913, 14; 5, 1914, 7; 45, 1914; 46, 1914; 8, 1915, 2; 14, 1915; 17, 
1915; 23, 1915; 25, 1915; 28, 1915; 43, 1915; 44. 1915; 49, 1915, 12; 4, 1916, 3; 6, 1916, 2; 10, 
1916, 1-2; 12, 1916; 19, 1916; 21, 1910: 23.1916, 2; 33, 1916: 40, 1916. 

22. Disapproval— The accused (officer) was found guilty of "Neglect of duty" and sen- 

tenced to be publicly reprimanded by the commander in chief, United States 
Atlantic Fleet. The record was returned to the court because the sentence was 
inadequate. The court adhered to its former sentence and the convening authority 
disapproved the sentence as inadequate. C. M. O. 46, 1314. See also C. M. O. S3. 
1904, 4; 4, 1916, 3. 

23. Same — The department returned a record, ordering the court to reconvene for the 

purpose of reconsidering the sentence, which was, in the opinion of the department, 
"grossly inadequate for the very serious offense of which" the accused was found 
guilty. The court in revision adhered to its sentence. The court was once more 
directed to reconvene for the same purpose and again adhered to its sentence, "and 
in order that the service at large might not be misinformed as to what the depart- 
ment considers as proper punishment for this offense, the sentence adjudged * * * 
was disapproved as wholly inadequate."' C. M. O. 10, 1913, 6. See also Adequate 
Sentences, 15. 

24. "Glaringly inadequate." See Adequate Sentences, 15. 

25. "Grossly inadequate." See Adequate Sentences, 23. 

26. Law— The law (R. 3. 1624; A. G. N. 51) makes it the duty of naval courts-martial to 

adjudge adequate sentences. See Adequate Sentences, 8. 

27. "Manifestly and absurdly inadequate." C. M. O. 7. 1912, 3. 

28. "Ludicrously inadequate." See Adequate Sentences, 11. 

29. Not necessarily maximum — " Courts-martial are to bear in mind that they do not 

meet in all cases to adjudge the maximum sentence for the offense, as laid down 
in the table of limitations of punishment, but to determine the attending circum- 
stances and degree of wrongdoing of the accused and adjudge a sentence accordinglv." 
CM. 0.6, 1 I 

30. Officers— When an officer is a member of a naval court-martial he is assumed to know 

that the law makes it mandatory for him to adjudge an adequate sentence. C. M. O. 
107, 1901, 2. 

31. Usurpation— Of convening and reviewing authorities' power. Sec Adequate Sen- 

tences, 10. 

ADJOURNMENT OF COURTS-MARTIAL. 

1. General courts-martial— When the proceedings of any general court-martial have 

commenced, they shall not be suspended or delayed on account of the absence of any 
of the members, provided five or injre are assembled; but the court is enjoined to 
sit from day to dav, Sundavs excepted, until sentence is given, unless temporarily 
adjourned by the a ithority "which convened it. (A. G. X. 4"; Forms of Procedure, 
1910, p. 17.) la view of the above, though such action would not necessarily invali- 
date the proceedings, a general court-martial daring a trial should not adjourn over a 
holiday or any other day which is not a Sunday, without such permission being 
expresslv granted, or unless the court is expressly granted such authority in the 
precept/ (SeeC. M. O. 49, 1910, 11; G. C. M. Rec. No". 21330; File 26251-2842.) C. M.O. 
51, 1914, 4. 

2. Same — W r here a general court-martial adjourned from Tuesday until Friday without 

permission from the convening authority, the department stated prior to approving 
the case that the specific provision of A. G. N. 45 violated in this instance, being 
directory only and not mandatory and the error committed one which causes no 
injury to the accused, the irresrulafitv offers no sufficient grounds upon which to set 
aside and defeat the proceedings. C. M. O. 27, 1S9S, 1-2. 



ADJOURNMENT OF COURTS -MARTIAL. 21 

3. Same— The court adjourned over from Friday, December 31, 1909, until Monday, Janu- 
ary 3, 1910, without previously having been authorized so to do by the convening 
authority. As it appears that the provisions of A. G. N. 45 were promulgated pri- 
marily to prevent an accused being held in confinement an unwarrantable time while 
awaiting final action, and as in the case at issue no injury appears to have been done 
him, in fact the contrary appears to have been the case, the adjournment permitting 
him to secure counsel which he had not previously obtained, this irregular action on 
the part of the court is an irresmlarity which did not invalidate the proceedings. 
C. M. O. 49, 1910, 11. See also File 26504-37. 

ADJUTANT AND INSPECTOR, UNITED STATES MARINE CORPS. 

1. Assistant adjutant and inspector — Authority to administer oaths. See Oaths, 48. 

2. Indorsement — On letter of adjutant and inspector as evidence. C. M. O. 47, 1910, 5. 

See also Indorsements, 1; Letters, 4, 5. 

3. Letter— Of adjutant and inspector as evidence. C. M. O. 47, 1910,5. Seealso Letters, 5. 

4. Oaths — Administering of oaths by. See Oaths, 48. 

ADJUTANT GENERAL OF THE ARMY. 

1. Indorsement— On letter of adjutant and inspector, U. S. M. C, is not competent 
evidence to prove previous convictions. See Letters, 4. 

ADMINISTRATION. 

1. Commissions of same date— Numbering of. See Commissions, 26. 

2. Commissions — Change in date of. See Commissions, 9-19. 

3. Comptroller of the Treasury— Department's policy has been to disapprove sub- 

mission of specific questions involving administrative matters under its own juris- 
diction to Comptroller of the Treasury. See Comptroller of the Treasury, 3. 

4. Promotion, suspension from— Administrative officer determines the manner the 

loss of numbers shall be executed. C M. O. 42, 1915, 12. See also Promotion, 200. 

5. Res judicata— For a list of cases wherein it was held to be a settled rule of adminis- 

trative practice that official acts of a previous administration are to be considered as 
final by its successor so far as the executive is concerned. See File 11130-6, J. A. G., 
Dec. 28, 1909; Commissions, 14-16; Res Judicata. 

6. Same— The only exception to the rule is where the application for review is based upon 

new facts, a new "state of law, or some extraordinarv circumstances. File 11130, 
J. A. G., Dec. 28, 1909, p. 5. Seealso Res Judicata, "6. 

7. Resignations, acceptance of — The Secretary of the Navy is the proper administrative 

person to accept the resignation of an officer for the President. CM. O. 42, 1915, 13. 
See also Resignations, 28. 

8. Secretary of Navy— Charged with the administration of the entire Navy. See Ade- 

quate Sentences, 3; Secretary of the Navy, 6. 

ADMINISTRATOR. See also Legal Representatives. 

1. Death gratuity. See Death Gratuity, 13. 

2. Officer's effects— Disposition of. See Disposition of Effects, 5, 6. 

3. Paymaster— Jurisdiction of Court of Claims over claim of paymaster's administrator. 

C. M. 0/39, 1913, 12. 

4. Private. See Disposition of Effects, 2. 

5. Public. See Disposition of Effects, 2. 

6. Sheriff— Payment of reward for deserter to administrator. See Rewards, 2. 

ADMIRALS. 

1. Admirals of fleets— Pay of. See Rear Admirals, 2, 3. 

2. Admiral of the Navy— Retirement of— Only upon application. See Retirement of 

Officers, 4. 

3. Rear admirals— Pay of rear admirals, lower nine. C. M. O. 12, 1915, 12-13. See also 

Rear Admirals, 2, 3. 

4. Same— Retired rear admiral— Tried by general court-martial. C. M. O. 41, 1915. 

5. Title of— Ancient title of admiral appertains to the military and command branches of 

the naval service. See Titles, 1. 

ADMISSIONS. 

1. Accused— Admitted in open court certain allegations in the specifications. C. M. O. 30, 
1912, 5; 34, 1913,7; 37, 1915, 2. See also G. C. M. Rec. No. 28652. pp. 3, 7: 31925: 32078; 
31904; C. M. O. 9, 1897, 9, 11; 39, 1913, 4; File 26251-12462; C. M. O. 5, 1917. 

Evidence is not required to prove allesat ions in specifications which accused or 
his.counsel admit in open court. File 26251-12159, Sec. Navy, Dec. 9, 1916, p. 10. 



22 ADMISSIONS. 

2. Admissions against interest. See Admissions Against Interest. 

3. Judge advocate, by — The judge advocate may be authorized by the convening author- 

ity to admit in open court that a person would give certain testimony if he were sum- 
moned and testified before the court. (File 26251-4119:6, Sec. Navy, Jan. 9, 1911; 
26251-10649:3, Sec. Navy, June 2, 1915; G. C. M. Rec. No. 30669.) The judge advocate 
should not be authorised to admit that the facts in question are true, but only that 
the person, if present as a witness, would testify that thev were true. File 26251- 
4119:6, Sec. Navy, Jan. 12, 1911; C. M. O. 49, 1915, 9. See Ct. Inq. Rec, 4952, p. 799, 
with reference to similar admissions by judge advocate of a court of inquiry. 

4. Same — Of contents of efficiency reports of officers. See Reports on Fitness, 5. 

ADMISSIONS AGAINST INTEREST. See Admissions; Dying Declarations, 1 
(p. 201, line 55). 
1. Board of investigation— The statement made by an accused before a board of investi- 
gation, when such statement takes the complexion of an admission against interest 
or a confession, is admissible as evidence before naval courts-martial. G. C. M. Rec. 
No. 11279. See also Confessions, 8. 

ADMONITION. See Criticism of Courts-Martial, 22; Judge Advocate, 6; Marine 
Examining Boards, 2; Words and Phrases. 

ADOPTION. 

1. Citzensliip by. See Citizenship, 3-4. 

ADVANCE DECISIONS BY THE DEPARTMENT. 

1. Policy— Of the department outlined. See Hypothetical Questions, 1. 

ADVANCES OR LOANS BY PAY3IASTERS. 

1. Prohibited— Section 1389 R. S. provides that " it shall not be lawful for any paymaster, 

passed assistant paymaster, or assistant paymaster, to advance or loan, under any 
pretense whatever, to any officer in the naval service, any sum of monev, public or 
private, or auv credit, or any article of commodity whatever." C. M. O. 4, 1913, 9. 
See also C. M.'O. 107, 1901: 17, 1915, 2. 

2. Trivial advances. C. M. 0. 107, 1901, 2. 

ADVANCES OF PAY TO OFFICERS. 

1. Officers— Ordered to sea, etc. See Fraud, 5; Pay, 9. 

ADVISING. 

1. Crime. See Aiding and Abetting, 1. 

2. Desertion. See Desertion, 48, 79, 80. 

3. Judge advocate— Should not advise the accused to plead "guilty." C. M. O. 6, 1909, 3. 

See also Judge Advocate, 34, 86. 

4. Same— Advice to court. See Judge Advocate, 49-59. 

ADVISORY STATUTES. 

1. Directing mode of proceeding — In general, statutes directing the mode of proceeding 
by public officers are deemed advisory, and strict compliance with their detailed 
provisions is not indispensable to the validity of the proceedings themselves unless 
a contrary intention can be clearly gathered from the statutes construed in the light 
of other rules of interpretation. C. M. O. 27, 1898, 1. 

AFFIDAVITS. 

1. Admission— Of an ex parte affidavit favorable to accused does not invalidate proceed- 

ings, and is no ground for clemency by the department; but otherwise if the affidavit 
is against the accused. File 1009-94. See also File 26251-11479, Sec. Navy, Feb. 16, 
1916, where department disapproved a finding on a general court-martial specification 
because an affidavit unfavorable to accused was introduced in evidence over objection 
of accused. See also C. M. O. 48, 1915, 2; Clemency, 3. 

2. Certificate— That affiants are known to be reputable and creditable may be made by 

the person before whom the oath is administered. This rule applies only to ordi- 
nary cases with respect to which there is nothing to suggest the propriety of further 
inquiry. Additional evidence may be called for as public interests require. File 
546-97," J. A. G., Mar. 3, 1897. 

3. Date and place of birth of an applicant for enlistment— A recruiting officer of the 

Navy may administer an oath to a person not in the naval service who desires to 
make an affidavit as to the date and place of birth of an applicant for enlistment in 
the United States Navy. CM. 0.5, I9lt>, 7. See also Oaths, 39. 






AFFIDAVITS. 23 

i. Deposition — An affidavit is "a statement or declaration reduced to writing and sworn 
or affirmed to before some officer who has authority to administer an oath or affir- 
mation. It differs from a deposition in this, that in the latter the opposite party 
has an opportunity to cross-examine the witness, whereas an affidavit is always 
taken ex parte." (1 Bouvier, 111.) C. M. O. 48, 1915, 2. See also Depositions, 2. 

5. Evidence — An affidavit is inadmissible in evidence. Affidavits, or statements of persons 

not subjected to cross-examination, are entirely incompetent as evidence before 
courts-martial. Affidavits, however, have sometimes been admitted by courts- 
martial in the absence of objection by a party. But, notwithstanding the consent 
of parties, a court-martial could rarely, if ever, with safety receive evidence of this 
character, which, must, in general, be too incomplete to serve as a reliable basis 
either for its own judgment or the action of the reviewing authority. 

In a case where an affidavit signed by a witness for the defense who had failed to 
appear, was introduced and accepted by the court as evidence, the department 
stated: 

" The Forty-first Article of the Articles for the Government of the Navy requires 
that: 'An oath or affirmation * * * shall be administered to all witnesses before 
any court-martial, by the president thereof.' There is no authority of law for the 
acceptance by naval courts-martial of an ex parte affidavit as evidence, and the court 
erred, therefore, in admitting such affidavit. The introduction of an affidavit of this 
character by the prosecution would have been fatal to the validity of the proceedings i 
but inasmuch as the matters contained in said affidavit were favorable to the accused, 
its introduction by the defense can not have that effect.'' (C. M. O. 50, 1893, 6.) 

In another case "the department held that " the court erred in admitting as evidence 
of" the accused's "previous good character a written statement purporting to be the 
affidavit of" an officer "who had been summoned to appear before the court as a wit- 
ness and was unable, on account of sickness, to so appear," and quoted with approval 
the above holding in court-martial order No. 50, 1893, 6. (C. M. O. 99, 1893, 1.) 

In court-martial order No. 41, 1894, p. 2, the department quoted approvingly the 
above excerpt from court-martial order No. 50, 1893, p. 6 ; and further stated: "It 
appears that an affidavit— the sworn statement of a physician regarding the effect of 
i ntoxicating liquor -~-was offered for the inspection of the court , read aloud by the judge 
advocate, and appended to the record, and that, in the argument for the defense, this 
document was referred to as being in evidence. The court erred in accepting such, 
affidavit as evidence." C. M. O. 48, 1915, 2-3. 

6. Parents of enlisted man— To show son under age when enlisting. C. M. 0. 6, 1915, 14. 

7. Statement of accused— In court-martial order No. 21, 1910, p. 12, the department held 

that an affidavit should not be included as part of the statement of the accused. In 
that case "the judge advocate read for the accused an affidavit as part of the statement 
of the accused " which was appended to the record. " By such a procedure the state- 
ment of the accused is made a vehicle of evidence in that it is made to embrace a docu- 
ment which, even though sworn to ; is nothing more than an ex parte statement ; and 
not even a deposition, and as such is incompetent as evidence, and furthermore inad- 
missible as a part of the statement of the accused." (See also C. M. 0. 22, 1896, pp. 1-2; 
132, 1897, p. 2.) C. M. O. 48, 1915, 3. See also Statement of Accused, 38. 

AFFIRMATION. 

1. Witnesses— May affirm instead of taking the oath. See Depositions, 5; Oaths, 20. 

AFFRAY. 

1. Witnesses of— Excited witnesses of a riot or furious affray are not likely to comprehend 
and remember accurately the movements of the various persons actively engaged. 
C. M. O. 7, 1911, 8. See also Evidence, 128. 
AGE. 

1. Age of appointment— " More than 26 years of age" construed. Sec Assistant Pay- 
masters, 3. 

2. Appointment assistant paymasters. See Assistant Paymasters, 3. 

3. Clemency— Because of youth. See Clemency, 67-71; Youth. 

4. Date of birth— Upon the furnishing of proper evidence the department will authorize 
the Bureau of Navigation to change upon the records the date of birth of au officer. 
File 8912-02. 

5. Fraudulent enlistment— By misrepresenting age. See Fraudulent Enlistment, 

57-60. 

6. Midshipmen— Age limit for candidates to Naval Academy. See Midshipmen, 3-6. 



24 AGE. 

7. Misrepresented— Fraudulent enlistment by misrepresenting age. See Fraudulent 

Enlistment, 57-60. 

8. Retirement for age. See Retirement of Officers, 4-9. 

AGGRAVATING CIRCUMSTANCES. 

1. Absence unauthorized— Combined with. See Absence from Station and Duty 

Without Leave, 12. 

2. Assault— Of a civilian by a naval officer after "considerable provocation." CM. O. 53, 

1910, 2; 54, 1910, 2. 

3. Cigarettes— Smoking of cigarettes by officer of the deck is an aggravation for other 

offenses with which he might be charged. C. M. O. 25, 1909, 2. See also Officer of 
the Deck, 3. 

4. Drunkenness— Voluntary drunkenness is never an excuse for an offense such as unau- 

thorized absence, but in many cases is an aggravation. See Absence from Station 
and Duty After Leave Had Expired, 9, 10; Drunkenness, 1. 

5. Offenses— Misconduct of an officer on duty at the Naval Academy is aggravated by the 

fact that he is on duty at the Naval Academy. C. M. 0. 14, 1915. 

"AID OR EXECUTIVE." 
1. Executive officer— At one time called the "Aid" of the commanding officer. See 
Executive Officer, 1. 

AIDS. 

1. Additional pay. See Pay, 7, 8. 

AIDS TO NAVIGATION. See Navigation. 

AIDING AND ABETTING. 

1. Assault and battery—" All persons who are present at the commission of an assault and 

battery, aiding, encouraging, or inciting the principal participants by words, gestures, 
looks, or signs, or who, in any way, countenance or approve the assault, are in law 
deemed to be principals, and a blow by one is a blow by each and all." (2 A and E 
Ency. 975; U. S. v. Ricketts, 1 Cranch, 164.) C. M. O. 55, 1910, 6. See also File 
26251-4729 : 34. 

2. Same— An accused was charged with "Assaulting and striking his superior officer while 

in the execution of the duties of his office," the specification alleging that he did 
assault and strike said superior officer. The court found this specification proved, 
except the words "and strike," thus finding the accused guilty of the assault, but not 
guilty of the striking. The evidence conclusively showed that the accused was 
present and took part in a general assault by several persons on the person assaulted. 
As the accused was in the general mix-up which resulted in the beating of the person 
assaulted it was held by the department that, from the evidence, the accused being 
guilty of assault, was also guilty of "striking" under the rule that one who is present 
and aids and abets, assists, or encourages is guilty as a principal. C. M. . 55, 1910, 5-6. 

3. Desertion. See Desertion, 12. 

4. Embezzlement— Accused "did then and there aid and abet." C. M. O. 29, 1911, 3, 5; 

30, 1911, 1. 

5. Tneft— Should be charged as a principal— "Where two or more persons act together in a 

larceny, each of them doing one part of the whole act, they are joint principals in the 
crime." (25 Cyc. 56.) Thus, "where one party brings the property stolen to a certain 
place, wheretiis confederate takes it and makes off with it, since the whole constitutes 
one transaction in which both take a part, both are guiltv of larceny as principals." 
(25 Cyc. 56.) C. M. O. 8, 1913, 3-4. See also File 26251-4729 : 34. 

6. Same— If the facts indicate that a person aided and abetted a theft or larceny he should 

be tried under the charge of "Theft," not "Aiding and abetting larceny (or theft) 
in violation of clause sixteen of article 8 of Articles for the Government of the 
Navy." C. M. O. 8. 1913, 3-4. See also File 20251-4729 : 34. 

7. Sodomy. File 26251-4729 : 34. See also Sodomy. 

AIDING IN VIOLATION OF LIQUOR LAWS. 

1. Guam, of. See Jurisdiction, 33. 

AIR SERVICE. See File 23687-9; Aviation; Naval Militia, 1. 
AIRCRAFT. See File 28687-9. 






ALLOTMENTS. 25 

ALABAMA CLAIMS. 

1. Laws relating to— 18 Stat., 245; 19 Stat., 1, 3; 22 Stat., 98; 23 Stat., 34; 24 Stat., 77. 
See Files 1122-97 and Notes. 

ALASKA. 

1. Executive order— Reserving certain islands for naval purposes. Signed Decembers, 

1903, and filed in Bureau of Yards and Docks. See File 10329-03. 

2. Juneau— Correspondence and history of naval reservation in Juneau, Alaska . See Files 

of J. A. G. for 1883 and 1897. See also File 6219-04. 

ALCOHOL. See C. M. O. 42, 1909, 12, 14; 24, 1914, 21; 42, 1915, 3. See also- Drunkenness. 

ALCOHOLISM. See Drunkenness. 

1. Judge advocate— Of a general court-martial tried by general court-martial— For being 

incapacitated for the proper performance of his duty in consequence of the excessive 
use of intoxicating liquor, and was thereby in such condition as to necessitate his being 
placed on the sick list for "alcoholism." C. M. O. 104, 1896, 1. 

2. Officer— Under treatment for "alcoholism." C. M. O. 22, 1884, 3. 

3. Petty officer— A petty officer who renders himself unfit for duty through alcoholism 

is not to be trusted. See Petty Officers, 1. 

4. " Pronounced chronic alcoholism." File 5925-03. 

5. Treatment for— An enlisted man requested remission of sentence in order that he might. 

take cotirse of treatment for alcoholism. File 262.7-3467, July, 1916. 

ALIAS. 

1. Desertion— Used in specification under charge of "desertion." C. M. O. 8, 1888. 

2. Findings— Alias of accused should be included. C. M. O. 9, 1916, 5; G. CM. Rec. 31812. 

3. Fraudulent enlistment— Used in cases of. See C. M. O. 25, 1914, 6; 29, 1914, 4, 7. 

4. Sentence— Alias of accused should be included. C. M. O. 9, 1916, 5; G. C. M. Rec . 31812 

ALIENS. See also Citizenship, 34. 

1. Citizenship of— Requirements for. See Citizenship, 34. 

2. Discouraging retention of, in naval service— An alien was sentenced to confinement, 

extra police duties/loss of pay and allowances, and dishonorable discharge. The de- 
partment approved the sentence, but pursuant to the department's general policy of 
discouraging the retention of aliens in the naval service, "so much of the sentence as 
provided for confinement, with corresponding extra police duties and loss of pav and 
allowances, was remitted, and the accused was discharged from the service in accord- 
ance with the remaining terms of the sentence. C. M. O. 1 81 , 1902, 2. 

3. Enlistments of, not permitted— Aliens are not permitted to be enlisted. See Depart- 

ment Circular of Sent. 1, 1908; Citizenship, 12. 

4. Enlistment papers — Entries on enlistment papers. See Service Records. 

5. Foreigners on warships— Representatives of a foreign Government can not be admitted 

to sen ice on board American warships for a term of two vears, without special author- 
ity of Confess. File 6273, J. A. G., Dec. 17, 1906. 

6. Fraudulent enlistment— Effect of. G. C. M. Rec. No. 24710. See also Fraudulent 

Enlistmfnt, 2. 

7. Guam— Jurisdiction to naturalize aliens as citizens of the United States is not possessed 

bv any court in Guam. 1 i!e 26252-90, J. A. G., Feb. 27, 19 L4. 

8. Midshipmen. See Midshipmen, 8. 

9. Naturalization of. See Citizenship. 

10. Navy yards— Employment of aliens in navy yards— Recommended that rule be sus- 

pended in the case of an alien who was adopted by American parents, and in whose 
case the question of citizenship was raised. {See Navy yard Order No. 26, Revised 
Dec. 28, 1905; File 3194-3, Mar. 31, 1905.) File 3194-1,* Oct. 17, 1906. 

11. Requirements— For naturalization of. See Citizenship, 34. 

12. Serving on vessels of the U. S. Navy— No law governing, but growing tendency to 

decline such requests. Settled that no foreign olicers are allowed to attend 'the 
course at the Naval War College. File 9S6:-246, J. A. G., March 29, 1912. See. also 
Citizenship, 12. 

ALLOTMENTS. 

1. Erroneously canceled— May be continued. File 8528-431, J. A. G., Nov. 10, 1915. 

2. Forgery— Of indorsement on an allotment check. File 27381-25, J. A. G., June 3. 1916. 



26 ALLOTMENTS. 

3. Government Hospital for the Insane — A chief carpenter confined in the Government 

Hospital for the insane is not authorized by law or regulations to register an allotment, 
even though mentally competent, for the reason that he is ashore within the United 
States. (Navy Regulations, 1909, R-1094.) The wife of such an officer desiring to 
secure a portion of his pay should have a guardian or committee appointed to take 
charge of his affairs. File~852S-327:l. Seealso File 852S-1 11; Navy Regulations, 1913, 
R-4472. 

4. Same— Where an enlisted man of the naval service is a patient at the Government Hos- 

pital for the Insane and it has been certified by the naval medical officer at, and the 
superintendent of, the said hospital that he is mentally competent to receive and 
dispose of his pay, he is legally competent to make an allotment or assignment of 
was;es in accordance with Navy Regulations, 1913, R-4471 and R-4472. (See also 
CM. 0.22, 1915, p. 8.) File 10060-67, J. A. G., Aug. 18, 1915; C. M. O. 29.1915,5. See 
also File 8528-340; 1S02-04; 8528-399, Oct. 29, 1913; Assignment of Wages. 

5. Infants— In view of the probable inconvenience to the accounting officers and the diffi- 

culties an infant would be subjected to in cashing checks should an allotment be made 
to him, an allotment should not be made to an infant but should be made to the guard- 
ian of the infant for the benefit of the infant. File 8528-425, Sec. Navy, July 7, 1915; 
C. M. O. 27, 1915, 6. 

6. Loss of pay remitted — On condition that the accused allot all pay, except necessary 

prison expenses, transportation, and gratuity to be paid on discharge, etc. C. M. O. 
28, 1909, 1; 37, 1909, 1; 10, 1913, 6. 

7. Same— Allotments by persons convicted of fraudulent enlistment and desertion— Loss 

of pay mav be remitted bv the Secretary of the Navy, to allow allotment to families, 
etc. File 26254-279. See also File 26262-811:3; Clemency, 39, 53; Pay, 23. 

8. Minor. See Allotments, 5. 

9. Naval instructions, 1913,1-4893. See Naval Instructions, 1913, 1-4893. 

ALLOWANCES. 

1. Confinement of marine reduced — Convening authority when reducing period of 

confinement of a marine should make a corresponding reduction in the forfeiture 
of pay and allowances adjudged. A failure to do so is irregular, for if the sentence 
was carried out as thus mitigated, the accused would lose all pay and allowances 
during confinement, except S3 a month for prison expenses, and all pay and allow- 
ances ^throughout the balance of his enlistment. C. M. O. 49, 1910, 11. See also Con- 
finement, 34. 

2. Detentioners— Status of, as to clothing allowances, etc. See Detentioners. 

3. Dishonorable discharge adjudged marines— If the sentence of a marine includes 

confinement with corresponding hard labor, forfeiture of pay, and dishonorable 
discharge, loss of allowances should also be adjudged in accordance with Navy Regu- 
lations, 1913, 810(5); R-S17 (1). C. M. O. 7, 1911, 4; 2, 1912, 4. 

4. Same — Remitted— If convening authority remits dishonorable discharge in marine's 

sentence, he should also remit forfeiture of allowances. Where convening authority 
neglected to do so the department remitted the forfeiture of allowances. C. M. O. 
7,1911,4. 

5. Fraudulent enlistment— Receipt of either pay or allowances by a person not in the 

naval service when fraudulently enlisting completes the offense of fraudulent en- 
listment and proof of receipt of either under such enlistment will support a finding 
of guilty of that offense. See Fraudulent Enlistment, 4, 50. 

6. Government Hospital for the Insane— Allowances for patients and prisoners at. 

See Government Hospital for the Insane, 2. 

7. Limitation to period of forfeiture. See Pay, 29. 

8. Marines— Only, should be sentenced to forfeiture of allowances in general court-martial 

sentences. C. M. O. 37, 1909, 3; 42, 1909, 6, 11; 55, 1910, 7, 8; 6, 1913, 3. 

9. Same— Should not be sentenced to forfeiture of allowances unless dishonorable dis- 

charge is also adjudged. See Allowances, 10. 

10. Same — Not sentenced to dishonorable discharge should be sentenced to forfeiture 

of pav only (not allowances) during confinement. C. M. O. 42, 1909, 3; 14, 1910, 7; 
15, 1910, 6; 17, 1910, 5; 14, 1913, 3. 

11. Midshipmen. See Midshipmen, 62. 

12. Mounted marine officers— Marine officer whose dutv requires him to be mounted, 

is entitled to forage, etc. File 26254-306:2. See also Pay, 67. 

13. Pay— "Allowances''' and "Pav" distinguished — Additional pav of enlisted men 

denned. See File 26254-113. 

14. Waived— Allowances mav be waived by enlisted men. File 13673-1442, J. A. G., Nov. 

22, 1911, p. 12. See also Estoppel, S. 



APPEALS. 27 

ALOUD. 

1. Reading documents — The record of proceedings should not state that "the judge 
advocate real aloud" documents, for Forms of Procedure, 1910, p. 18, provides 
that when the record states that a paper, document, or testimony was read, it is 
understood that it was read aloud. C. M. O. 12, 1911, 3. 

ALTERATIONS. See also Amendments; Corrections. 

1. Finding — Shall be free from all alterations. See Findings, 7. 

2. Navy Regulations— Necessitv of President's express approval. See Regulations, 

Navy, 16-19. 

3. Sentence — Sentences shall be free from all alterations. See Sentences, 10. 

AMBIGUITY. 

1. Sentences— Should not be ambiguous. See Dishonorable Discharge, 3; Sen- 
tences, 11. 

AMENDMENTS. See also Alterations: Corrections. 

1. Charges and specifications. Sec Charges and Specifications, 33, 34. 

2. Constitution of the United States. See Constitution of the United States, 1-2. 

3. Record of proceedings— No changes are to be made in the original record of proceed- 

ings in revision. See Corrections, 4; Record of Proceedings, 26, 97; Revision, 30. 

4. Same — Where record of proceedings correctly reports the proceedings which actually 

occurred, it can not properly be "corrected" so as to record a different state of facts'. 
See Corrections, 5. 

• AMERICAN BLUEJACKET." See C. M. O. 7, 1911, 9. 

AMERICAN INDIAN. See Indians. 

AMPUTATION. 

1. Arm — Chief gunner continued on active list for shore dutyonlv. File 26253-473, Sec. 
Navy, May 22, 1916. See also File 20260-950, Sec. Navy, July 29, 1910; 9346-08, 
Sec. Navy, Feb. 14, 190S. 

ANESTHETICS. 
1. Death of naval patient— While under cocaine. C. M. 0. 10, 1915, 8. 

ANNUITY. 
1. Oath— Powers of commanding officers. See Oaths, 38. 

ANTEDATING. 

1. Commissions. See Commissions, 3, 4. 

2. Enlistments. See Enlistments, 2. 

3. Sentence— Whereas it is within the province of the convening authority to mitigate 

sentences of general courts-martial convened by him, and he may in such cases, by 
express terms, reduce the period of confinement adjudged, his action in making 
confinement date from a previous day would be irregular and contrary to the pro- 
visions of Navy Regulations. C. M. O. 49, 1910, 15. See also C. M. O. 27, 18S7, 16; 
27, 1911, 6; 21, 1912, 4; 21, 1914, 4; Confinement, 1, 9. 

ANTIMILITARY SOCIETIES. 
1. Laws relating to— There is no Federal law which would necessarily be violated in time 
of peace by an organization which teaches "young men to refuse to do military serv- 
ice" and "that no one should volunteer to serve." File 15183-65, Sec. Navv, Apr. 
10, 1916. 

APOLOGY. 

1. Does not cure an offense — "It is not sufficient for any person who, through careless- 
ness and thoughtlessness of consequences, injures another, perhaps for life, to say to 
the injured person, 'I am sorry, I did not intend to hurt you,' and then drive on' and 
make no further effort to care for the victim or heal the wounds." C. M. O. IS, 191G, 2. 
See also C. M. O. 31, 1881, 3; Officers, 101. 

APPEALS. 

1. Comptroller of the Treasury. See Comptroller of the Treasury. 

2. Congress, to— Death gratuity — Where deceased left no widow or children, ami 

mother has not been "previouslv designated," her onlv redress ''lies in an appeal 
to Congress." File 26543-137, Sec. Navy, Nov. 20, 1915; C. M. O. 42. 1915. 9-10. 

3. Same— Where officer believes his date of commission is erroneous. (See Commissions, 14. 



28 APPEALS. 

4. Counsel of accused to department— Counsel (marine officer) for accused (officer) 

appealed to Secretary of the Navy to have findings and sentence set aside on 
grounds that "his trial was not a public trial as required by law," the judge advocate 
having been present during closed court — Department declined to set aside. C. M. O. 
6, 1915, 6. See also File 8464-03; 670-97. See also Appeals, 10. 

Civilian counsel for the accused (enlisted man) appealed to the department but 
his appeal was not granted. C. M. O. 20, 1915, 6. 

Counsel for accused appealed on grounds that accused "did not have a fair trial " 
in that the court sustained objections to certain questions. File 26262-2644: 1 . 

5. Deatn gratuity — "Appeal to Congress." See Appeals, 2. 

Appeal to Secretary of the Navy by beneficiary from decision of Pavmaster 
General. See Death Gratuity, 4, 23. 

6. Deck court — Testimony taken in deck-court proceedings forwarded to department only 

in case of appeal. See Deck Courts, 1, 2. 

7. Same — Accused may appeal from a deck-court sentence in accordance with the pro- 

visions of section 6 of the act of February 16. 1909 (35 Stat., 621) (Navy Regulations, 
1913, R-516). See Deck Courts, 1, 2,58; File 27217-1752, Sec. Navy, Sept. 23, 1915, 
for an actual appeal denied. 

8. Habeas corpus— Should the civil court order the discharge of the party, the officer 

making the return, or counsel, should note an appeal pending instructions from the 
Navy Department. See Habeas Corpus, IS. 

An officer acting as counsel for an accused should not institute habeas corpus pro- 
ceedings or a suit for damages against members. See Counsel, 29, 36; Habeas 
Corpus, 17. 

9. Illegal orders— Appeals from. See Orders, 4, 5, 38, 39, 64, 67. 

10. Officer— Appeals to President under Navy Regulations, 1900, R-1857 (4) [Navy Regu- 

lations, 1913, 1-5323], can not be made by an officer in behalf of another person, as 
in a case of an appeal by an officer who acted as counsel in a general court-martial 
trial in behalf of accused. File 8464-03; 670-97. See also Appeals, 4. 

11. Same — As a general rule, no appeal lies to the President from the head of a department, 

Avhose acts are presumed to be acts of the President himself (9 Op. Atty. Gen. 462). 
However, in the naval service appeals may be taken to the President from the orders 
and decisions of the Secretary of the Navy. (Naval Instructions, 1913, 1-5323). 
An official appeal from an order or decision of the Secretary of the Navy, by an 
officer, shall be addressed to the President as the common superior, and be for- 
warded through the department, except in case of refusal or failure to forward, 
when it may be addressed directly. Similarly, an appeal from an order or decision 
of an immediate superior shall be addressed" to the next highest common superior 
who has power to act in the matter, and shall be forwarded through the immediate 
superior, or, should the latter refuse or fail to forward it within a reasonable time, 
it may be forwarded direct with an explanation of such course. (1-5323.) 

12. Same— Accused (officer) sentenced to lose 15 numbers, which was approved by con- 

vening authority. The accused appealed from the sentence. The case was there- 
upon examined by the Judge Advocate General and by the Secretary of the Navy, 
and finally submitted, with a full statement of the points covered by the appeal, 
to the President, who directed that the sentence be mitieated and that the accused 
be reprimanded for neglect of duty. C. M. O. 48, 1904, 1. 

13. Same— Accused (officer) sentenced to lose 10 numbers, which was approved by con- 

vening authority, made a formal appeal to the department, which declined to 
disturb the conclusions reiched by the court. C. M. O. 73, 1896, 2. 

A marine officer appealed to President regarding his position on the list, stating 
that under section 19 of the personnel act and R. S. 1219 he should precede four others. 
File 8171-03. 

Appealed to department and requested consideration of department's letter of 
censure in connection with report of board of investigation. File 262S3-327:24, J. A. G . 
June 15, 1916. See also Res Judicata, 14. 

Member of a general court-martial protested and appealed against criticism of con- 
vening authority (fleet). See Criticism of Courts-Martial, 35. 

Member of a siunmary court-martial appealed from criticism of convening author- 
ity being enterei on report on fitness. See Criticism of Courts-Martial, 36. 

Officer appealed for a reconsideration of his general court-martial sentence, but 
Secretarv of the Naw denied appeal. File 26251-8101:2, Sec. Navy, Apr. 30, 1915. 
See also File 4435 and' 444.5-04, J. A. G., May 19, 1904. 

Officer appealed from opinion of Judge Advocate General to Secretary of the Navy. 
File 1401S-4, J. A. G., Aug. 16, 1909, p. 7. 






APPEALS. 29 

14. Orders— Appeals from illegal orders. See Orders, 4, 5. 

15. President— Appeals to. See Appeals, 10, 11. 

16. Property accounts— To Secretary of the Navy. 

17. Report on fitness — Officer appealed to have punishment removed from report on 

fitness. 
See Criticism of Courts-Martial, 36. 

18. Second lieutenant, U. S. M. C— Having failed professionally in examination for 

promotion appealed on ground that he was ill at time of examination. Disapproved. 
File 26260-3314:6, Sec. Navy, August, 1910. See also Promotion, 97. 130, 148. 

19. Secretary of the Navy — Has the power, and therefore his duty, to examine into 

the grounds upon which an accused bases his appeal. C. M. O. 73, 1896, 2. 

20. Subig Bay Naval Reservation— Secretary of Navy denied an appeal by a civilian 

from action of commandant in deporting him. File 11406-429, Sec. Navy, July 6, 
1915. See also Jurisdiction, 96. 

APPLICANTS FOR ENLISTMENT. 

1. Assumed names— Should not be enlisted under. See Name, Change of, 5. 

2. Marine Corps— Prosecution of those who fraudulently receive transportation, etc. 

See File 7657-180 and 180:1, June 4, 1913. See also Marine Corps, 27, 29. 

APPOINTING POWER. 

1. Power of— The power of appointing officers of the Navy, vested by the Constitution in 

the President and the Senate, can not be restricted by a custom, however long con- 
tinued; and unless the laws plainly and unmistakably contain such limitation, it 
can not be held to exist. File 5252-36, J. A. G., May 5, 1910, p. 2. 

2. Same — Under the Constitution Congress has power to create offices, but by Article II, 

section 2, the power of appointment to such offices is expressly vested elsewhere. 
Congress may and frequently has exercised the power of changing the rank or emolu- 
ments of persons holding office under the United States, but it can not appoint 
such person to a "new and different office, because the Constitution vests the 
appointing power in the President, with the advice of the Senate, or in certain cases 
in the President alone, the heads of executive Departments, or the courts of law." 
(Wood v. U. S., 15 Ct. Cls. 86; see also Wood v. U. S., 107 U. S., 414; Moser v. U. S., 
42 Ct. Cls., 86; 25 0p.Atty.Gen.,185; 20 Op. Attv. Gen.,3."8; 19 Op. Atty. Gen., 589; 
6 Comp. Dec, 828; veto message of President Arthur of July 2, 1884, VIII Mess, and 
Papers Prest., 221.) Held, That the provision in act of August 22, 1912 (37 Stat. 
891), "that the dentist now employed at the Navy Academy shall not be displaced 
by the operation of this act and he shall have the same official status, pay, and 
allowances as may be provided for the senior dental surgeon at the Military Academy," 
did not create a new office at the Naval Academy, and no appointment or commis- 
sion is necessary or can properly be issued to "the dentist now employed at the 
Naval Academy." File 13707-25, J. A. G., Oct. 24, 1912. See also Appointments, 8. 

3. Resignations — The appointing power may decline to accept resignations. See Resig- 

* nations, 2, 16-19. 

4. Statutes in derogation— Of the appointing power. See Officers, 96; Statutory 

Construction and Interpretation, 28. 

APPOINTMENTS. See also Acting Appointments; Commissions. 

1. Acting Assistant Dental Surgeons. See Acting Assistant Dental Surgeons. 

2. Acting Assistant Surgeons. See Acting Assistant Surgeons, 1, 2. 

3. Acting Pay Clerks. See Pay Clekks and Chief Pay Clerks, 1, 2, 3. 

4. Age limit* See Age, 1; Assistant Paymasters, 3; Midshipmen, 3-6. 

5. Assistant paymasters. See Assistant Paymasters, 1-3. 

6. Commandant of Marine Corps— Can not be temporary. See Marine Corps, 

47, 48. 

7. Same— Retired officer can not receive an appointment as. See Marine Corps, 47, 4S. 

8. Congress— Can not of itself make an appointment to an office, such act being one of 

the functions of the Executive, the courts of law, or heads of departments. File 
22724-16:1, J. A. G., Apr. 24, 1911, p. 10. Sec also Appointing Power, 2. 

9. Date of— The appointment of an officer is not consummated until his commission is 

signed and sealed by the President, who has a right to withhold his signature after 
confirmation by the Senate. File 4996, June 1, 1906. See also Commissions, 41. 

It would seem to be the opinion of the court in Marbury v. Madison (1 Cranch, 137) 
that the office is completely filled in every case of vacancy as soon as the appoint- 
ment is complete, independently of the acceptance of the appointee. (2 Storv, 5th 
ed.,sec. 1554. ) File 22724-16:1, J. A. G., Apr. 24, 1911, p. 9. 



30 APPOINTMENTS. 

10. Same— Promotion is a vested right, and an officer is entitled to rank from date of 

vacancy, i ile 14818-4. But see Promotion, 142. 213. 

11. Same— Where the appointment of a midshipman as ensign is held over, after final 

graduation of his class, and he is later appointed, his commission should bear the 
date of confirmation of his class by the Senate. See File 4996, June 1, 1906. 

12. Same— An o ficer having been appointed as soon as he becomes eligible will not be 

subsequent! v given an earlier date, although his eligibility may relate back to such 
date. File 9466-03. 

13. Same— Officers advanced in the corps of civil engineers, to fill vacancies caused by the 

retirement of Civil Engineer Robert E. Peary, United States Navy, should be given 
the date of that officer's actual retirement, and not the date from which it was pro- 
vided by special act of Congress that his retirement should date. File 26255-83:4, 
J. A. G., Aug. 4, 1911. 

14. Date of acceptance— Where an officer of the Marine Corps was appointed a second 

lieutenant on July 18, 1905, the date he became 21 years of age, and on that date 
wrote an acceptance from Fort Missoula, Mont. , and thereafter the Bureau of Navi- 
gation, on July 24, 1935, forwarded a notification of such appointment and a blank 
form of acceptance and oath of office, which were executed by the officer July 31, 
1905. H:ld, That if he was informed in effect that he would be appointed when he 
reached the age of 21, or if he had actual notice that he had been appointed, or if his 
appointment had been "in some way brought to his knowledge," his letter of July 
18, 1915, constituted a valid acceptance from said date. File 11130-16, J. A. G., May 

28, 1912. 

15. Dental Surgeons, Acting Assistant. See Acting Assistant Dental Surgeons. 

16. Desertion of an officer— Effect of. See Desertion, 90, 9 1. 

17. Ensigns— Academic Board has no power— An examination of the statutes providing 

for the appointment of ensigns in the Navy, from 1862 to May 5, 1910, does not dis- 
close any mention of the Academic Board as possessing exclusive powers with 
respect to such appointments. See Academic Board of the Naval Academy, 4. 

18. Same— From boatswains, gunners, warrant machinists, etc.— The act of March 3, 1901 

(31 Stat., 1129) provides for filling vacancies in the grade of ensign by presidential 
appointments from boatswains, gunners, or warrant machinists, not exceeding six 
per calendar year. The act of March 3, 1903 (32 Stat., 1197) raised the number to 
12 yearlv. See J. A. G. Memo., Sept. 30, 1916; Act, Apr. 27, 1CC4 (33 Stat. 346) 
cited in File 28026-1209: 4, J. A. G., Oct. 25, 3916; Promotion, 192, 216. 

19. Examining Boards— Appointments to. See Marine Examining Boards, 4-8; 

Naval Examining Boards, 2, 4, 5. 

20. Marine Corps— May be made from civil life. File 3727-2, Sec. Navy, Feb. 17, 1906. 

21. Same— Appointment of Major General Commandant. See Marine Corps, 47-50. 

22. Same — Enlisted men of the Navy and Marine Corps, as well as noncommissioned 

officers, may be appointed as second lieutenants. File 13261-426, J. A. G., May 

29, 1913. 

23. Same— Enlisted men to Naval Academy. See Midshipmen, 52. 

24. Medical Reserve Corps. See Medical Reserve Corps of the Navy, 1. 

25. 31idsliipmen. See Midshipmen; Naval Academy. 

26. Naval Academy— Legal residence and age requirement. See Midshipmen, 3-6. 

27. Naval officers— From civil life, Army, or Marine Corps. See Constructive Service. 

28. Pay clerks and chief pay clerks. See Pay Clerks and Chief Pay Clerks. 

29. Paymasters, assistant. See Assistant Paymasters. 

30. Paymaster's clerks. See U. S. Navy Reg. Cir., Sec. Navy, Jan. 10, 1880; Paymas- 

ter's Clerks, 10. 

31. Physical disability— Waiver of, and rights to retirement. See Retirement of Offi- 

cers, 4o. 

32. Post traders. See Post Traders. 

33. Power of. See Appointing Power, 1, 2. 

34. Professor of mathematics— Filling vacancy in corps of. See Professors of Mathe- 

matics. 

35. Prohibited in certain cases— A naval surgeon can not be appointed to the position 

of health officer of Culebra, P. R. File 9736-18, J. A. G., June 25, 1910, p. 16. See 
also File 1831-18, Sec. Navy, Apr. 18, 1907. 

A marine officer can not accept the appointment as member of governor's staff in 

Porto Rico. (File 5381-1, Sec. Navy, Aug. 30, 1907.) File 9736-18, J. A. G., June 25, 

1010, p. 16. 

35. Qualifications for appointment— The qualifications of a candidate are presumed to 

have been ascertained and found satisfactory previous to his appointment to office, 



APPOINTMENTS. 31 

and in the absence of fraud his qualifications can not, under certain conditions, 
thereafter be inquired into, although it should be claimed that he did not possess 
the statutory qualifications for appointment. (28 Op. Atty. Gen. 180.) File 5460- 
82, J. A. G. , June 3, 1916. See also Constitutional Law, 4. 

37. Recess appointments. See Commissions, 1, 23, 29. 

38. Requirements lor — Commission void if unfulfilled. See Commissions, 20. 

39. Retired officer— As delegate to Hague Conference. See Retired Officers, 38. 

40. Revocation of. See Commissions, 20, 22; Post Traders. 

41. Temporary— Acting assistant dental surgeon. See Acting Assistant Dental Sur- 

geons. 

42. Same— Major General, Commandant of Marine Corps. See Marine Corps, 48. 

43. Vacated— By filling grade to authorized number. See Desertion, 91; Promotion, 109. 

44. Warrant machinists. See Warrant Officers. 

APPRENTICES. 

1. Hospital apprentices— Clothing outfits for. See Clothing Outfits. 

2. Minors— Who enlist with consent of guardian, have same right as other enlisted men 

to make agreement to reenlist or to waive transportation. File 4682-04, J. A. G., 
May 31, 1904. 

3. Naval apprentices— Clothing outfits for. See Clothing Outfits, 1. 

APPROVAL ONLY THAT ACCUSED MIGHT NOT ENTIRELY ESCAPE PUN- 
ISHMENT. See also Criticism of Courts-Martial, 35 (p. 143). 

1. Approval ol proceedings, findings, and sentence— That accused might not escape 

punishment— " The department approves the sentence in this case only in order 
that the accused might not escape punishment for the serious offense of which he 
was convicted, upon his own plea." C. M. O. 1, 1914, 8. 

2. Same— The convening authority (fleet) stated, in part, that the sentence in revision 

was still inadequate, but approved the proceedings, findings, and sentence in revision, 
in order that the accused might not entirely escape punishment. C. M. O. 38, 
1914, 2; 45,1914,1. 

3. Same—" The proceedings, findings, and sentence in this case are approved only for 

the reason that they are the result of prolonged deliberation by a respectable and 
legally organized court," and because the accused would otherwise go wholly with- 
out punishment. G. O. 148, Dec. 31, 1869. 

4. Same. See C. M. O. 22, 1884, 2; 35, 1884; 30, 1885, 3; 61$, 1890, 4; 102, 1893, 2; 2, 1896, 2; 

139, 1897, 2; 215, 1901, 2; 108, 1903; 2, 1907; 10, 1908, 5; 23, 1908; 24, 1908; 28, 1908; 1, 1914, 
8; 38, 1914, 2; 45, 1914; 14, 1915, 2; 17. 1915, 3; 43, 1915; 6, 1916; 12, 1916; 19, 1916, 3. 

5. Approval— Of the finding "not guilty" upon a charge of "Culpable inefficiency in the 

performance of duty" only on the presumption that the court must, though un- 
warrantably, have regarded the charge of "culpable inefficiency" as implying an 
element of fraudulent intent. CM. 0. 129, 1898, 8. 

ARCTIC RELIEF SQUADRON. 

1. Return of— "The Navy Department announces to the service the safe arrival at Ports- 
mouth, N. H., on the 1st of August, of the Thetis, Bear, and Alert, composing the Arc- 
tic Relief Squadron, after having successfully accomplished the object of their mis- 
sion, in the rescue of Lieutenant Greelyof the Army, and the other survivors of his 
party." G. O. 321, Aug. 5, 1884. 

ARGUMENTS. 

1. General court-martial trial— The Forms of Procedure 1910, page 39, provides: " The 
judge advocate is entitled to the closing argument" and the sequence of procedure 
contained on the same page indicates that the defense makes the opening argument 
and the judge advocate follows, either making an argument or stating that he submits 
the case to the court without remark. (See also G. C. M. Pec. No. 21478a, p. 3.) In 
case the accused has only one counsel and the judge advocate has no counsel asso- 
ciated with him, the court, in its discretion, may properly grant a request of either 
the prosecution or defense to argue more than once. If the judge advocate has an 
associate and the accused is represented by more than one counsel, the court may 
exercise its discretion as to granting requests from either side for an argument by each 
individual or that an individual may argue more than once. By placing these matt ers 
within tne discretion of the court the department does not desire to encourage unneces- 
sary arguments. The court should grant such requests for additional arguments only 

50756°— 17 3 



32 ARGUMENTS. 

in cases where it is clearly necessary. The court, in its discretion, shall arrange the 
sequence in which the parties present their arguments, except that in all cases the 
defense shall make the first argument and the prosecution afforded an opportunity 
to make the last. (See C. M. O. 55, 1910, 10; G. C. M. Rec. No. 28652.) C. M. O. 51, 
1914 3. 

While great latitude is allowed counsel for defense in their arguments, still the 
court should require that such arguments be based uoon matter which is relevant to 
the issue of the trial. The court should not permit counsel to resort to a general 
malediction of a third party. File 26251-11479: b and c, Sec. Navy, Feb. 16, 1916. 

Judge advocate read extracts from law books in his argument. G. C. M. Rec. 
23037, p. 89. 

Court allowed counsel for accused to make a second argument, and the judge advo- 
cate exercised his right, bymaking the final argument. G. C. M. Rec. 30012; File 
26251-11960. See in this connection G. C. M. Rec. 23037, p. 89. 

2. Same — Judge advocate should not make his closing argument a plea for the accused 

when accused is represented by counsel of his own selection. C. M. O. 1, 1914, 6. 

3. Irregular — Court commits an error if it permits counsel for the defense to read in the begin- 

ning as a part of his argument a statement of facts by the accused. The so-called 
statement in this case was throughout an assertion of independent facts and therefore 
should not have been listened to by the court. CM. O. 76, 1896, 9. See also State- 
ment of Accused, 14. 

4. Oral arguments— Upon the admissibility of evidence and upon interlocutory proceed- 

ings, may be allowed, but shall not be recorded; briefs of such arguments, if prepared 
at his own expense and subsequently submitted to the court bv the party who made 
the same, shall be appended to the record. C. M. O. 27, 1913, 12; 31, 1914, 2; 49, 
1915, 9. See also G. C. M. Rec. 30485; 13370; Briefs, 1. 

5. Record of proceedings— Copy appended. C. M. O. 26, 1905, 3. 

ARMISTICE. See War, 1-4. 

ARMY. 

1. "Army code." C. M. O. 31, 1915, 9. See also Articles of War. 

2. Arrest of deserters from Army — By civil authorities. See Deserters, 2. 

3. Articles of War. See Articles of War. 

4. Chaplains. See Chaplains, 1. 

5. Charges and specifications, additional. See Additional Charges and Specifica- 

tions, 1, 3. 

6. "Conduct unbecoming an officer and a gentleman" — Sentence of dismissal is 

mandatory in Army. See Conduct Unbecoming an Officer and a Gentleman, 
6; Court, 169. 

7. Court-martial, Army— Enlisted men of the Navy and Marine Corps while being 

transported on board an Army transport are subject to the rules and regulations of 
said transport, but those regulations contain nothing which would give an Army 
summary court jurisdiction over such enlisted men for purposes of their trial thereby. 
To be so amenable to trial by such a court, the enlisted men must be attached to 
the A.rmy by Executive order. File 26287-534, J. A. G., June 15, 1910. 

No Army court-martial shall be held on board any naval vessel in commission, 
nor shall officers in charge of troops embarked order any public punishment or con- 
finement in irons to be inflicted on board without the previous approval of the com- 
manding officer of the ship. (R-3S45.) 

8. Deserters from Army— May be arrested by civil authorities. See Arrest, 1; De- 

serters, 2. 

9. Desertion— On a charge of desertion the specification in addition to alleging "that the 

accused remained in desertion until identified while serving in the Army " must also 
allege the date upon which he was identified. C. M. O. 33, 1912, 2; 6, 1913, 4. 

10. Dishonorable discharge from the Army— Men who fraudulently enlist in Navy or 

Marine Corps concealing a dishonora ble discharge from the Army should be sentenced 
to dishonorable discharge for, irrespective of the offense for which the man may be 
tried and convicted, it can not be to the best interests of the naval service to retain 
in it men who nave been dishonorably discharged from the Army. C. M. O. 17, 
1910, 7; 26, 1910, 5. See also Fraudulent Enlistment, 9, 39. 

11. Fraudulent enlistment— As proof of desertion. C. M. 0. 23, 1910, 8. See also Deser- 

tion, 51; Fraudulent Enlistment, 37, 38, 51. 



ARMY. 33 

12. General court-martial — Trial of Marine by Army court-martial — Sentence mitigated 

by President after return of accused to naval jurisdiction. See Marines Serving 
with Army, 6. 

13. General court-martial record as evidence— A record of a trial by general court- 

martial of an accused while serving an enlistment in the Army is inadmissible in 
evidence before a naval court-martial to show that the accused was mentally irre- 
sponsible, and a request by the defense for postponement until copy of such record 
of trial is secured was properly overruled. C. M. O. 17, 1910, 9. 

14. General Orders of Army— A general order of headquarters of California, United States 

Army, is such a document as may properly be admitted in evidence for certain pur- 
poses. C. M. O. 49, 1910, 10. 

15. General Order No. 110, Navy Department— A soldier who enlists in Marine Corps 

for first time upon the termination of an enlistment in Army is not a reenlisted man 
within purview of G. 0. 110. See General Order No. 110, July 27, 1914, 19. 

16. Guard duty. See Manslaughter, 9. 

17. Manual of Interior Guard Duty, 1914— Court may take judicial notice of. See 

Judicial Notice, 6. 

18. Marines serving with Army. See Marines Serving with Army. 

19. Medical Reserve Corps of. See Medical Reserve Corps of the Navy, 1. 

20. Mitigation of sentence after final approval— The convening authority of an Army 

court-martial has no authority under the 112th Article of "War to mitigate after 
final approval. C. M. 0. 1, 1912, 4. See also Articles of War, 3. 

21. Previous convictions— Of marine while serving temporarily with Army, under execu- 

tive order, admissible in a subsequent trial by naval court-martial, if otherwise 
admissible. See Previous Convictions, 3. 

22. Same — Previous convictions while serving an enlistment in the Army is inadmissible 

in a subsequent trial by naval court-martial. See Previous Convictions, 2. 

23. Promotion — Officer shall be examined for promotion prior to the existence of the 

vacancy. See Promotion, 131, 132. 

24. Same — Where examined after existence of vacancy. See Promotion, 131, 132. 
.25. Regulations, Army. See Regulations, Navy ; 5, 13. 

26. Sentence — Imposed by Army court-martial mitigated by President after return of 

accused to naval jurisdiction. See Marines Serving with Army, 6. 

27. Summary court — No jurisdiction over Marines on Army transport. See Army, 7. 

28. Transports — Marines embarked upon — No jurisdiction by Army summary court. 

See Army, 7. 

29. Trials — Time of day Army courts-martial convene for trials. C. M. O. 27, 1913, 10. 

See also Court, 171. 

ARMY AND NAVY CLUB OF MANILA, P. I. 

1. Officer expelled from. C. M. O. 5, 1909, 1; File 26260-1392, J. A. G., June 29, 1911, p. 18. 

ARMY AND NAVY CLUB OF WASHINGTON. See C. M. 0. 15, 1916, 3. 

ARRAIGNMENT. 

1. Additional charges and specifications— May be preferred by convening authority, 

even after arraignment. See Additional Charges and Specifications. 

2. Errors in— Where the record failed to show that the accused had been arraigned on all 

specifications, but merely on one, and the court made a similar error in its findings, 
the department held that as it was impossible to ascertain to which specification the 
accused's plea of guilty was directed and that the accused was certainly not informed 
as to which specification he was pleading, such errors were fatal and necessitated a 
disapproval of the findings by the department. C. M. O. 49, 1910, 14. 

3. Same — It is improper to arraign the accused as follows: "How say you to the specifi- 

cation of the first charge * * * " when there is but one charge against the accused. 
It is also improper, in such case, to record that the court finds the accused guilty of the 
first charge. C. M. O. 21, 1910, 11. See also Arraignment, 6, 16, 28, 29. 

4. Same— Where the record showed that the accused, upon arraignment, pleaded guilty 

to the specification of the second charge, but contained no entry as to what his plea 
was to the charge, the finding as to that charge was disapproved. C. M. O. 51, 1905. 

5. Same— An accused charged with desertion, pleaded guilty of absence without leave, 

and not guilty to so much of the specification as alleged desertion. The court neither 
accepted nor rejected his plea, but called his attention to Navv Regulations, 1905, 
R-897[N. R., 1913, R-3632(4)]. The accused was then arraigned a second time and 



34 ARRAIGNMENT. 

pleaded guilty to both charge and specification. Held, That this procedure of the 
court was irregular, and in view of Navy Regulations, 1905, R-900~[N. R., 1913, R- 
3633], improper. The proceedings, findings, and sentence were disapproved. C. M. 
O. 4, 1906. 

6. Same — It is an error for the first question to refer to "charges and specifications" if there 

is but one charge and specification. C. M. O. 78, 1905. See also Arraignment, 3, 16, 
28, 29. 

7. Same — Accused pleaded in bar of trial the statute of limitations, but court decided that 

said plea was not valid. Thereupon, without arraigning the accused, who was given 
no opportunity to plead to the general issue, the judge advocate began the prosecu- 
tion. The accused was found guilty and sentenced. The department held "that if, 
as appears from the record, the accused was not arraigned upon the charge and specifi- 
cation preferred against him, such omission constitutes a fatal defect in the proceed- 
ings of the court, and that, even if the error in this regard is one of record only, and 
not of fact, the evidence adduced is wholly insufficient to establish the offense 
charged." The sentence was accordingly disapproved. C. M.O . 28, 1902. 

8. Same— The record showed that the accused was arraigned on the first specification of 

the second charge and on the third specification of the second charge, but failed to show 
that the accused had been arraigned and pleaded to the second specification of said 
second charge. The accused was acquitted, and the department for the above and 
other reasons disapproved the findings and acquittal. C. M. O. 27, 1913, 10, 11. 

9. Same — The entry referring to the arraignment of the accused was incomplete, as it was 

not shown that the accused was arraigned on the charge. The entry upon the record 
showed that the accused was arraigned upon the specification of the charge, and 
stood mute; it should also show that he was arraigned upon the charge. C. M. 0. 14, 
1910, 8. 

10. Same— The record of proceedings in this case shows that the accused was arraigned on 

the first, second, and third specifications of the charge, and the charge, but does not 
disclose an arraignment on the fourth specification of the charge. He pleaded 
"guilty "to the charge and to the specifications on which he was arraigned. The 
court found all four specifications "proved by plea" and the accused "guilty" of the 
charge. If, as appears from the record, the accused was not arraigned upon the 
fourth specification of the charge preferred against him, such omission constitutes a 
fatal defect as to that specification, and for this reason the finding on the fourth 
specification is set aside. (See Forms of Procedure, 1910, p. 24; C. M. O. 28, 1902; 
51, 1905, 1; 49, 1910, 14; 14, 1910, 8; 27, 1913, 11; G. C. M. Rec. No. 27273; Shelp v. U. S., 
81 Fed., 701; Harv. Law Review, June, 1914, p. 760.) This irregularity in the pro- 
ceedings does not vitiate the findings as to the remainder of the specifications or the 
charge nor affect the legalitv of the sentence. (See Carter v. McClaughry, 183 U. S., 
365.) C. M. O. 17, 1915, 1-2. 

11. Same — The department disapproved the findings on a charge and specification there- 

under when the accused was not arraigned on the charge. C. M. O. 28, 1894, 4. 

12. Same — Where the record did not show that the accused was arraigned on the third 

specification of the third charge the department returned the record, and the court 
in revision made a notation that the accused was arraigned on this specification. 
File 26251-8344, Sec. Navy, Apr. 14, 1914; G. C. M. Rec. No. 28681. 

13. Failure to arraign. See Arraignment, 2-12. 

14. Findings set aside. See Arraignment, 10. 

15. Irregular pleading — The accused, upon being arraigned, pleaded to the first charge 

and specification as follows: "To the specification, 'not guilty'; to the charge, 
'guilty'." Such a plea should not be allowed by the court, as the form of the plea 
is strictly inadmissible. It neither confesses anything nor contests anything, but 
consists of two incompatible answers which nullify the issue, and can not be ad- 
mitted as pleas by the court. In view of the above the findings on the first charge 
and specification thereunder were disapproved. C. M. O. 8, 1897, 2; 146, 1901, 4. 

16. Same— The arraignment of the accused was carelessly conducted, the accused being 

called upon to plead to the "first specification" of both charges, whereas there was 
but one specification under each charge; and the plea of the accused to the first 
charge and specification was irregular in form, his answer to the sp3cification being 
"guilty in a less degree than charged," and to the charge "guilty in less degree." 
Neither of these irregularities were sufficient to invalidate. C. M. O. 35, 1900, 1. 
See also Arraignment, 3, 6, 28, 29. 

17. Joinder, trial in. See Joinder, Trial in. 






AERAIGNMENT. 35 

18. Mute — Procedure where accused stands mute after withdrawing a plea of nolo con- 

tendere — Where an accused withdraws a plea of "nolo contendere," stating "The 
accused withdraws his plea of 'nolo contendere' and stands mute," he should be 
arraigned on both the specification and the charge, and if he made no answer to 
either, the fact of his having stood mute on both occasions should have been entered 
upon the record, and the trial should have proceeded as if he had not pleaded "not 
guilty." It would be improper for the judge advocate to enter a plea of "not 
guilty." C. M. O. 26, 1910, 6. See also Nolo Contendere. 

19. Same — When the accused stands mute on arraignment, it should be so entered upon 

the record, and the trial then proceed as though the accused had pleaded "not 
guilty." It is improper for the court to direct the judge advocate to enter a plea of 
"not guilty." C. M. O. 14, 1910, 8; 26, 1910, 7. See also C. M. O. 28, 1891, 2; 90, 
1897, 4. 

20. Same-" The accused stood mute when asked to plead to the first charge and specifi- 

cation." C. M. O. 9, 1908, 1. 

21. Same — " To which charges and specifications thereunder the accused, when called upon 

to plead, stood mute." C. M. 0. 18, 1907. 

22. Same— In joinder, the accused were arraigned together instead of separately, but inas- 

much as they stood mute, this arraignment was sufficient in law. 

23. Same — When accused stands mute on arraignment, no comment should be made, as he 

is within his rights in so doing. C. M. O. 76, 1901. 

24. Same — When the accused stands mute when arraigned on the specification, he should 

also be arraigned on the charge and the record should show that he was arraigned on 
both the charge and the specification. C. M. O. 14, 1910, 8. See also C. M. O. 26, 
1910, 6-7. 

25. Name of accused— Should be spelled correctly in the arraignment. C. M. 0. 28, 1910, 7. 

26. Same — The name used in the arraignment, findings, and sentence should agree with 

that in the specification if the latter is the correct name of the accused. CM. 0. 15, 
1910, 7. 

27. Name and designation of the accused— Shall be included in the arraignment. 

C. M. O. 49, 1910, 14. 

28. One charge and specification — Where only one charge with but one specification 

thereunder, the word "first" should not be used in the arraignment. C. M. O. 21, 
1910, 11. See also Arraignment, 3, 6, 16, 29. 

29. Same — Do not use "charges and specifications." C. M. O. 78, 1905, 1. See also C. M. O. 

35, 1900; Arraignment, 3, 6, 16, 28. 

30. Plea not accepted or withdrawn — The accused should be rearraigned when an irregu- 

lar plea is not accepted or plea is withdrawn. C. M. O. 26, 1910, 6. 

31. Record— The questions constituting the arraignment and the answers to them must be 

distinctly recorded. C. M. O. 47, 1892; 102, 1893; 104, 1893; 1, 1894, 3; 13, 1894, 2; 
24, 1894, 2; 38, 1895, 2. 

32. Summary court-martial — If there are two or more specifications, the accused should 

be arraigned upon each separately, referring to each of them by number, and the gen- 
eral form of arraignment should be the same as in general courts-martial. C. M. . 5, 
1914, 4. 

33. Warning— When record did not show that the accused, upon his plea of "guilty, " was 

warned by the court of the consequences of so pleading and of the further fact that 
the questions and answers constituting the arraignment did not appear upon the 
record, the proceedings, finding, and sentence were disapproved. See Accused, 64; 
Warning, 2. 

ARREST. 

1. Army— Deserters from — Civil authorities have authority to arrest deserters from the 

Army. C. M. O. 22, 1915, 7. See also Deserters, 2. 

2. Breaking arrest — Should be charged as "breaking arrest." See Breaking Arrest, 2. 

3. Civil authorities— Arrest by. See Deserters, 2-6; Civil Authorities, 17; Juris- 

diction, 16. 

4. Same — Court-martial prisoners. See Civil Authorities, 37; General Order No. 121, 

September 17, 1914, 16. 

5. Same— Arrest by civil authorities no defense to unauthorized absence if convicted; 

otherwise if acquitted. See Absence from Station and Duty After Leave Had 
Expired, 3-5. See also Arrest, 7 ; Commanding Officers, 2. 

6. Same— Persons on naval territory. See Jurisdiction, 9, 12, 13, 22-24, 69, S3-S7, 90-96, 

103, 105, 108, 117-122. 



36 ARREST. 

7. Commanding officer— Arrested by civil authorities and acquitted— No defense to 

unauthorized absence because he failed to report his whereabouts either to his imme- 
diate superior or to the Secretary of the Navy. See Commanding Officers, 2. 

8. Convening authority— In proper cases in his action on general court-martial cases 

should release accused from arrest and restore him to duty. See Convening Au- 
thority, 4. 

9. Court-martial orders— Should show, in proper cases, that the accused (officer) was 

released from arrest and restored to duty. C. M. O. 40, 1915. See also C. M. O. 32, 
1915; 14, 1916, where this was not done. See also Convening Authority, 4; Court- 
Martial Orders, 22. 

10. Definition— The question of what constitutes an arrest has been considered by the civil 

courts in numerous decisions and may now be regarded as finally settled. 

"An arrest in the strict legal sense of the term involves three elements — authority, 
intention, and a restraint of the person. 

" The authority must exist: Without it there may be a false imprisonment, but not 
an arrest. This authority may be either real or assumed. 

"The intention: There must be an intention, understood by the one arrested, to 
accomplish the arrest. 

" Restraint is necessary: A restriction of the right of locomotion is the most charac- 
teristic element of the arrest." (2 A. & E. Enc. L. 834.) 

"Except in the case of a submission, there must be either a physical touching or 
restraint, mere words addressed to the person said to be arrested not being sufficient. 
Such words are enough, however, if there is also submission to one who has the ap- 
parent power of carrying his design into effect." (2 A. & E. Enc. L. 838.) 

" The merest touch, however, without restraint, will suffice to constitute an arrest. ' ' 
(2 A. &E. Enc. L. 836.) 

If the person making the arrest "placed his hand upon the shoulder of the accused 
when putting him under arrest," this must be accepted as sufficient to constitute an 
arrest, in the technical or "strictlegalsenseoftheterm," provided that the intention 
of the person making the arrest thereby to place the accused under arrest was " under- 
stood by the one arrested," i. e., the accused. (C M. O. 7, 1911, 11-12.) 

"A consciousness of restraint in the party arrested or detained is essential to con- 
stitute an arrest." (Herring v. Boyle, 1 C. M. & R., 377; 2 A. & E. E., 834, note.) 
C. M. O. 7, 1911, 11-12. See also Breaking Arrest, 14. 

11. Definition in A. G. N. 43— "Arrest," as used in A. G. N. 43, does not relate to 

preliminary arrest or detention of accused but to the arrest resulting from preferring 
charges by proper authority and convening of court-martial. (19 Op. Atty. Gen., 472; 
U. S. v. Smith, 197 U. S., 386.) See Arrest, 26, 39. 

12. Same— Surrender of sword. See Arrest, 26, 39. 

13. Deserters from Army. See Deserters, 2. 

14. Deserters from naval service. See Deserters, 2-6. 

15. Drunken enlisted men— Arrest of. See Drunkenness, 6, 87, 90. 

16. Duty— An officer or enlisted man may be tried by general court-martial who refuses, 

or fails to use his utmost exertions to detect, apprehend, and bring to punishment 
all offenders, or to aid all persons appointed for that purpose. (A. G. N. 8 (17).) 
File 26251, Sec. Navy, July 7, 1913. 

17. Evidence— Of person arresting accused should be corroborated if practicable. C. M. O. 

7, 1911, 10-12. See also File 26262-1065; Evidence, 6, 33, 34. 

18. Habeas corpus— The question of whether or not a commanding officer should deliver 

up a person in the naval service to the civil authorities is completely covered in 
General Order No. 121, September 17, 1914. See General Order No. 121, Septem- 
ber 17, 1914, 11, 12. 

19. Same— Arrest of petitioner after discharge. See Habeas Corpus, 2. 

20. Insular authorities— San Juan, P. R.— By service of process. See Jurisdiction, 108. 
.21. Leave of absence— Persons arrested by civil authorities may be granted leave of 

absence. See General Order No. 121, September 17, 1914, 14. 

22. Midshipmen— Status of, while under arrest. See Midshipmen, 17. 

23. Same— Midshipmen arrested by civil authorities. C. M. O. 10, 1909. 

24. Military service— Deserters from. See Deserters, 2. 

25. Naval service— Deserters from. See Deserters, 2-6. 

26. Officers— An officer need only be required to deliver his sword to his commanding 

officer when he is placed under arrest at the time the charges and specifications are 
given him preliminary to his trial by a general court-martial, and such procedure 
is not necessary or proper in placing an officer under suspension. File 26806-78, 
J. A. G., Feb. 13, 1911. See also Arrest, 39. 






ARREST. 37 

27. Same — Court-martial orders should show in proper cases that officers were released 

from arrest and restored to duty. See Arrest, 9; Convening Authority, 4; 

28. Same— Arrested by civil authorities. C. M. O. 24, 1886; 10, 1909; 7, 1914; 19, 1915, 8-9; 

G. C. M. Rec. 31509. 

29. Officer serving in a fleet. File 27958-4, Sec. Navy, Aug. 18, 1916. 

30. Pay — During unauthorized absence if acquitted. See Pay, 1. 

31. Prisoners, court-martial. See Jurisdiction, 109-111. See also General Order No. 

121, September 17, 1914, 16, 23. 

32. Record of proceedings— Should show that accused (officer) in proper cases was 

released from arrest and restored to duty. C. M. O. 40, 1915. See also C. M. O. 32, 
1915: 14, 1916, where this was not done. See also Convening Authority, 4. 

33. Resisting arrest. See Resisting Arrest. 

34. Reward for arrest of deserters. See Rewards. 

35. Sword— Delivery of sword to commanding officer when placed under arrest. See 

Arrest, 26, 39. 

36. Testimony — Of person arresting accused should be corroborated if practicable. See 

Arrest, 17; Evidence, 6,33 ; 34. 

37. Unjust arrest— By civil authorities of a petty officer. File 7657-330, Sec. Navy, Dec. 

29, 1915. 

38 Wnat constitutes arrest— Where accused was charged with "breaking arrest" 
and the evidence showed that the master at arms had merely placed his hand on 
the accused shoulder, telling him that he was under arrest and to stand where he 
was while the master at arms "tried to stop the further gathering of a crowd in 
the street"; that the accused apparently did not comprehend that he was under 
arrest; and that he left the scene of the affray, but voluntarily returned to his ship 
the next morning. Held, That the evidence was not sufficient to show that the 
accused had "a criminal intent to evade the due course of justice," and that the 
charge of "breaking arrest" was not proved. File 26262-1065. See also C. M. O. 
7, 1911, 4-13; Arrest, 10; Breaking Arrest, 14. 

39. Same— Of an officer preparatory to trial by general court-martial— The Attorney Gen- 
eral has construed the provisions of arts. 24, 43, and 44 of the Articles for the Gov- 
ernment of the Navy, and the conclusions announced in that opinion (19 Op. Atty. 
Gen. 472) have been approved by the Supreme Court in United States v. Smith 
(197 U. S., 386). The Attorney General said (ib., 475): Construing articles 24, 43, and 
44 together, it is, in my opinion, clear that there may be two arrests— first, an arrest 
in an emergency or upon the discovery of the alleged wrongdoing, with a view to a 
preliminary examination, and if necessary the formulation and specification of 
charges; and, second, in the language of article 44, "an arrest for trial." I think it 
equally clear that article 43, providing that "the accused person shall be furnished 
with a true copy of the charges, with the specifications, at the time he is put 
under arrest" has reference to the second and formal arrest for trial, as referred to 
in article 44. File 26806-78, J. A. G., Feb. 13, 1911, p. 2. See also Arrest, 26. 

ARSON. See Corpus Delicti, 1, 2. 

ARTICLE 4893, NAVAL INSTRUCTIONS, 1913. See Naval Instructions, 1913, 1- 
4893. 

ARTICLES OF WAR. 

1. Army Code. C. M. O. 31, 1915, 9. See also C. M. O. 49, 1915, 23. 

2. Marine Corps— Subject to, when detached by order of the Fresident for service with 

the Army. C. M. O. 31, 1915, 7-11. See also Marine Corps, 85-99; Marines Serv- 
ing with Army. 

3. Sentence— It has been held by the Attorney General that officers of the Army who 

are authorized to convene general courts-martial have no power under the One Hun- 
dred and Twelfth Article of War to mitigate the punishment adjudged by such courts 
after final approval by them (19 Op. Atty. Gen. 106). It will be noted in this con- 
nection that this article of war does not in express terms require that the convening 
authority's power of mitigation be exercised on revision of the court's proceedings, 
as does article 54 of the Articles for the Government of the Navy. C. M. 0. 1, 1912," 4. 

ASSAULT. 

1. Aiding and abetting. See Aiding and Abetting, 1, 2. 

2. "And strike"— Found not proved. See Aiding and Abetting, 2. 



38 ASSAULT. 

3. "Assault" and "maliciously" found not proved— An enlisted man was tried by 

general court-martial under the charges (1) "Using obscene language toward his 
superior officer" and (2) "Assaulting and striking his superior officer while in the 
execution of the duties of his office." 

The specification of the second charge alleged that the accused did willfully and 
maliciously and without justifiable cause assault and strike his superior officer, who 
was in the discharge of his duties. 

The court found the specification of the second charge proved in part, proved 
except the words "and maliciously" and the words "assault and," which words the 
court found not proved. 

The court accordingly found the accused of the second charge "guilty in less degree 
than charged," guilty of "striking his superior officer while in the execution of the 
duties of his office." 

"With reference to the finding of th9 court upon the second charge the department 
is of opinion that such is inconsistent. In other words, the court goes on record as 
being of the opinion that the accused is guilty of striking but not assaulting his 
superior officer. It is not apparent to the reviewing authority that a man may 
intentionally and wrongfully strike another person without assaulting him. 

An assault is an attempt or even an offer to strike the person of another, and of 
course includes a successful attempt or an actual striking. (1 Words and Phrases, 
523.) 

The record was therefore returned to the court for tne purpose of revising its find- 
ings and sentence. C. M. O. 30, 1910, 8-9. 

4. "Assaulting and" found not proved— An accused was charged with "assaulting 

and striking another person in the service," and the court found the accused guilty 
of the charge except the words "assaulting and." The department stated in part: 
"It is difficult to understand how the accused could be found guilty of striking 
another person in the service and at the same time not guilty of assaulting such 
person. There may be an 'assault' without a 'striking' or 'battery.' An assault 
is included in every battery. Subject to the above remarks, the proceedings, findings, 
and sentence of the court in this case are approved, and the sentence will be duly 
executed." C. M. O. 43, 1S94, 3. 

5. Battery— An assault is included in every battery. C. M. O. 43, 1894, 3; 10, 1912, 6. See 

also BatterYj 1. 

6. Same — Distinguished from assault. See Battery, 1. 

7. Definition — An assault is "an attempt or offer with force and violence to do a corporal 

hurt to another." (Clark's Criminal Law, 224.) 2 Bishop New Criminal Law, para- 
graph 23, states that "an assault is an unlawful physical force partly or fully put in 
motion creating a reasonable apprehension of immediate physical injury to a human 
being." "(c) An attempt unlawfully to apply the least actual force to the person of 
another, directly or indirectly; (&) the act of using a gesture toward another, giving 
him reasonable grounds to believe that the gesture means to apply such actual force 
to his person as aforesaid." (Stephen's Digest of Criminal Law, art. 241.) In State 
v. Hampton (63 N. C, 13) it was held that a turning about with the hand clenched 
and bent at one's side, but not drawn back, and saying "I have a great mind to 
strike you," whereupon prosecutor walks away in another direction, amounts to an 
offer of violence and constitutes, therefore, an assault. " It is very generally held that 
where a threatening act is done, the effect of which is to create a well-grounded appre- 
hension of danger and cause the person threatened to act on the defensive or retreat, 
there is an assault." (Clark's Cr. Law, pp. 226-227: see also 3 Cyc, 1025-1026.) C. M. 
0.8,1911,6-7. 

8. Same—" An offer or an attempt to do a corporal injury to another." (United States v. 

Hand, 26 Fed. Cas. No. 15297.) 

"An assault is any attempt or offer, with force or violence, to do a corporal hurt to 
another, whether from malice or wantonness, with such circumstances as denote, 
at the time, an intention to do it, coupled with a present ability to carry such inten- 
tion into effect." (3 Cyc, 1020.) C. M. O. 10, 1912, 6. 

9. Same — An actual striking, or a motion of striking, which creates in the person struck 

or menaced a reasonable apprehension of immediate physical injury, constitutes 
assault, even though the person striking or making a motion as if to strike, does so 
jokingly. However, if jokingly done, and if the court so believes, such may be con- 
sidered as good grounds for recommendation to clemency. C. M. O. 8, 1911, 6-7. 
See also G. C. M. Rec. 21453, 21454, 22369, 23409; Clemency, 6. 

10. Drunkenness— As a defense. See Assault, 17, 18; Drunkenness, 7-9; Intent, 5, 42. 

11. Enlisted man— Charged with "assault." C. M. O. 33, 1893; 8, 1913, 5. 



ASSAULT. 39 

12. Feint to strike is an assault— The accused was charged with "Assaulting and striking 

a sentinel," the specification thereunder alleging that he willfully and maliciously 
and without justifiable cause assaulted and struck another enlisted man who was 
regularly on duty as a sentinel. The evidence clearly established the fact that the 
accused made a motion withhishand, that is, "feint," with his hand partly open, at 
the sentinel, and it would seem that the accused was at least guilty of assault. The 
court, however, acquitted the accused and the department returned the record for 
a reconsideration of the finding and sentence. The court, in revision, revoked its 
former finding and acquittal and found the accused guilty as charged. CM O. 
8,1911,6-7. 

13. Felonious intent— Accused was charged with "assaulting and attempting to kill 

another person in the Navy," the specification alleging that the accused did "while 
being searched as a preliminary to being placed in confinement for drunkenness, 
assault with a knife and attempt to kill" the chief master-at-arms. The depart- 
ment disapproved the findings on this charee and specification because the felonious 
intent on the part of the accused was not charged. C. M. O. 15, 1895, 2. See in 
this connection Assault, 14; Feloniously, 2. 

14. "Feloniously" — Not necessary to allege that the act was committed feloniously or 

with intent to commit a felony under a charge of "assaulting with a deadly weapon 
and wounding another person in the service." C. M. O. 8, 1911, 5. See also As- 
sault, 24; Feloniously, 2; U. S. v. Gallagher, 2 Paine, 447, Fed. Gas. No. 15185. 

15. General intent — In the offense of simple assault, the general intent to commit the act 

is presumed and evidence to show drunkenness when the act was committed is inad- 
missible and does not form ground for clemency. C. M. O. 7, 1911, 13; 8, 1911, 4-6. 
See also Drunkenness, 9. 

16. Intent — In simple assault the general intent is presumed though the accused was 

drunk when committing act. See Assault, 15; Drunkenness, 9; Intent, 5, 42. 

17. Intent to kill — The accused was tried under the charges (1) assault with intent to kill 

ana (2) assaulting with a deadly weapon and wounding another person in the service. 
It was noticed that the specification under the t^o charges is identical with the 
exception that the specification of the charge of assault with intent to kill 
includes the words "with intent to kill him, the said * * *." The court 
found that specification proved except the words quoted, and acquitted the accused 
of that charge, but found the specification of the second charge proved and the 
accused of that charge guilty. 

A careful consideration of the evidence adduced in this case raises a serious doubt 
as to the propriety of the acquittal. It was clearly shown that the accused, while in 
company with another enlisted man, unjustifiably and without warrant viciously 
attacked Private * * * with a deadly weapon (a large knife) and, after having 
knocked him down, while calling him vile names inflicted 27 stab wounds upon 
* * *, from the results of which * * * life was endangered. These facts stand- 
ing unrebutted would undoubtedly justify a finding of guilty of assault with intent 
to kill. The rule has been observed in the Federal courts, that in a case of assault 
with intent to kill, the act itself, when proved, offers circumstantial evidence of the 
specific intent, and that the inference that every sane man intends the natural and 
necessary consequences of his own acts is entitled to weight, but that the intent must 
be found from a consideration of all the evidence. (Acers v. U. S., 164 U. S., 388; 
U. S. v. Riddle, 27 Fed. Cas., 16 162, p. 809.) 

While it was shown that the accused at the time of the stabbing was under the 
influence of intoxicating liquor, it was not shown that he was so far intoxicated as 
to be disabled from entertaining the degree of intent required. The fact that one 
was drunk at the time of the commission of the act will, in certain cases, constitute a 
good defense, but such is a matter of defense only, and the burden of proving drunken- 
ness is upon the party claiming such to be the fact. "It is a well-settled general 
rule that voluntary drunkenness at the time a crime was committed is no defense. 
If a person voluntarily drinks and becomes intoxicated, and while in that condition 
commits an act which would be a crime if he were sober, he is fully responsible 
unless his drunkenness had resulted in insanity, or unless it rendered him incapable 
of entertaining a specific intent which is an essential ingredient of the offense." 
(12 Cyc, 170.) Drunkenness will be a defense in those crimes in the commission of 
which a specific intent is requisite, but it must be shown that the accused " was by 
drink so entirely deprived of his rcaion that he did not have the mental capacity to 
entertain the necessary specific intent required to constitute the crime" (120vc. 172), 
and the burden of showing such to have been the case, being a matter of defense 



40 ASSAULT. 

merely, rests upon the defendant. A resume of the evidence as to the drunkenness 
of the accused at the time of the stabbing will, it is believed, fail to disclose that his 
drunkenness had resulted "in insanity" or that he was "so entirely deprived of his 
reason as to be thereby rendered incapable of entertaining the specific intent requisite 
to constitute the crime." The department disapproved the finding upon the first 
charge and the specification thereunder and approved the proceedings, the findings 
upon the second charge and specification thereunder and the sentence. C. M. O. 
19, 1912, 6-8. See also Drunkenness, 50. 

18. Intoxication is no defense to simple assault— In order to commit the offense of 

simple assault it is not necessary to entertain the specific intent. "The condition 
of the prisoner's mind not being an element of the offense of assault and battery, 
evidence of intoxication at the time of the alleged offense is not admissible." (17 A. 
& E. Enc. 412.) C. M. 0. 8, 1911, 5. See also Assault, 17, 19; Drunkenness, 7-9; 
Intent, 5, 42. 

19. "Maliciously" found not proved— Accused was charged with "assaulting with a 

deadly weapon and wounding another person in the United States naval service" 
and "drunkenness on post." Court found him guilty of the second charge, found the 
word "maliciously" not proved in the specification under the first charge, and, in 
lieu of that charge, found him guilty of wilfully and without justifiable cause shooting 
and wounding another person in the naval service. The only explanation for the 
elimination of the word "maliciously" would appear that the accused was drunk, 
while a sentry on post, when he shot and wounded the other man. "A drunken 
man equally with a sober man is presumed to intend his acts." (Clark's Crim. 
Law, 71.) Department approved the proceedings, findings, and sentence subject 
to the above remarks. C. M. O. 7, 1911, 13-14. See also Maliciously, 1. 

20. Officer— Assaulting a civilian. C. M. O. 26, 1914. 

The Forms of Procedure, 1910, p. 90, furnishes a form for a charge of "assault." 

21. "Ruffianly assault" — Committed by accused upon a brother officer. G. 0. 157, Mav 

24, 1870. 

22. Sailmaker— Charged with. C. M. O. 90, 1897. 

23. Specific intent— Not necessary to prove the specific intent in assault and battery. 

C. M. O. 8, 1911, 5. 

24. Same — No specific intent necessary in order to complete the commission of the assault 

and wounding under a charge of "assaulting with a deadly weapon and wounding 
another person in the service," the specification thereunder alleging that the accused 
did "wilfully, maliciously, and feloniously and without justifiable cause, assault 
and cut with a knife or other sharp instrument" another person in the service. 
It is not necessary to allege that the act was done with any specific intent, and in 
the case of United States v. Gallegher (2 Paine 447; Fed. Cas. No. 15, 185), which was 
a case of assault with a dangerous weapon, the court held that it was not necessary 
to charge that the assault was committed feloniously, or with intent to commit a 
felony. C. M. O. 8, 1911, 4, 5. 

25. Stabbing— Is an assault. C. M. 0. 10, 1912, 5-6. See also Assault, 28. 

26. Striking— Is an assault. C. M. O. 30, 1910, 8-9. See also Assault. 3, 4. 

27. "Unjustifiable"— Found not proved in assault— Effect of. See C. M. O. 30, 1910, 9; 

8, 1911, 7. See Findings, 62 where "without justifiable cause" was found not 
proved. 

28. "Wilfully and maliciously" and "assault and" not proved— Accused was charged 

with "assaulting with a deadly weapon and wounding another person," the speci- 
fication thereunder alleging that accused did "wilfully and maliciously, and without 
justifiable cause, assault and stab with a knife" a civilian. The court found this 
specification proved in part, proved except the words " willfully and maliciously, 
and" also, except the words "assault and" ; all of which words were found not 
proved; and that the accused was of this charge "guilty in a less degree than 
charged, guilty of wounding another person with a deadly weapon." 

With respect to the foregoing finding that the word "assault" was found not 
proved, it is evident that the court was not aware of the fact that the battery, i. e., 
the stabbing, necessarily iucluded an assault. 

The finding would indicate that the court believed that the stabbing or cutting 
was neither consciously nor designedly nor knowingly done by the accused, and 
also that it was done without legal malice— i. e. , without the willful purpose to stab, 
which he must have known would be liable to injure his adversary. It is not believed 
that such a finding was really intended by the court. The department accordingly 
disapproved the finding on this charge and specification. C. M. O. 10, 1912, 5-7. 
See also C. M. 0. 146, 1901, 4; 120, 1898, l; 41, 1903; Wilfully and Maliciously, 2. 



ASSAULT WITH A DEADLY WEAPON. 41 

ASSAULT AND BATTERY. See also Assault. 

1. Gunner— Charged with "assault and battery, in violation of article" 8, A. G. N. 

C. M. O. 96, 1907. See also Forms of Procedure, p. 315; Navy Regulations, 
1913, R-900 (Limitations to Punishment Under Article 8.) 

2. Officer— Charged as above. G. C. M. Rec. 9505. 

ASSAULT WITH INTENT TO COMMIT RAPE. 

1. Paymaster's clerk— Charged with. C. M. O. 35, 1913. 

ASSAULT WITH ATTEMPT TO COMMIT SODOMY. 

1. Enlisted man— Charged with. G. C. M. Rec. 30935. 

ASSAULT WITH INTENT TO KILL. 

1. Enlisted man— Charged with. C. M. O. 19, 1912, 6. 

2. Intent— Is inferred from act. C. M. 0. 19, 1912, 7. See also Assault, 17. 

ASSAULTING AND STRIKING A SENTINEL. 

1. Enlisted man— Charged with. C. M. O. 8, 1911, 6. See also C. M. O. 1, 1917. 

2. "Feint"— Is an assault. C. M. O. 8, 1911, 6-7. See also Assault, 12. 

ASSAULTING AND STRIKING ANOTHER PERSON IN THE NAVY. 

1. Warrant officer— Charged with". C. M. O. 69, 1904; 212, 1901; G. C. M. Rec. 11583; 22718. 

2. Warrant officer (commissioned)— Charged with. C. M. O. 28, 1915. 

ASSAULTING AND STRIKING ANOTHER PERSON IN THE SERVICE. 

1. Warrant officer— Charged with. C. M. O. 42, 1909; 43, 1909. 

ASSAULTING AND STRIKING HIS SUPERIOR OFFICER WHILE IN THE 
EXECUTION OF THE DUTIES OF HIS OFFICE. 

1. "And strike" — Found not proved in specification. C. M. O. 55, 1910, 5-6. See also 

Aiding and Abetting, 2. 

2. Enlisted men— Charged with. C. M. O. 47, 1910, 8; 55, 1910, 5; 30, 1910, 8. 

3. "Striking"— Is an assault. C. M. O. 30, 1910, 8-9. See also Assault, 3, 4, 26. 

4. Officer— Charged with. G. C. M. Rec. 8363. 

ASSAULTING AND STRIKING AN ENLISTED MAN IN THE NAVY. 

1. Officer— Charged with. C. M. 0. 1, 1883. 

ASSAULTING ANOTHER PERSON IN THE NAVY. 

1. Enlisted man— Charged with. C. M. O. 21, 1910, 10; File 26251-12171, Sec. Navy, 
Aug. 10, 1916. 

ASSAULTING ANOTHER PERSON IN THE SERVICE. 

1. Enlisted man— Charged with. C. M. O. 41, 1903, 2. 

2. Gunner— Charged with. G. C. M. Rec. 11939. 

3. Warrant officer, acting— Charged with. G. C. M. Rec. 9077. 

ASSAULTING WITH A DEADLY WEAPON AND WOUNDING ANOTHER PER- 
SON IN THE NAVY. 

1. Enlisted man— Charged with. "C. M. O. 31, 1915, 6-7. 

ASSAULTING WITH A DEADLY WEAPON AND WOUNDING ANOTHER PER- 
SON IN THE SERVICE. 

1. Enlisted man— Charged with. C. M. O. 8, 1911, 4; 19, 1912, 6. 

ASSAULTING WITH A DEADLY WEAPON HIS SUPERIOR OFFICER WHILE 
IN THE EXECUTION OF THE DUTIES OF HIS OFFICE. 

1. Enlisted man— Charged with. C. M. O. 25, 1914, 3. 

ASSAULTING WITH A DEADLY WEAPON ANOTHER PERSON IN THE NAVY. 

1. Warrant officer— Charged with. C. M. O. 8, 1904. 

ASSAULTING WITH A DEADLY WEAPON AND WOUNDING ANOTHER PER- 
SON IN THE UNITED STATES NAVAL SERVICE. 

1. Enlisted men— Charged with. C. M. O. 7, 1911, 13; 8, 1911, 4; 10, 1912, 5; 19, 1912. 6. 

2. "Feloniously "—Not necessary to allege. C. M. O. 8, 1911, 5. See also Assault, 14, 24. 

3. Specific intent— Not necessary. C. M. O. 8, 1911, 5-6; 19, 1912, 6-8. 

4. Stabbing— Is an assault. C. M. O. 10, 1912, 5-6. See also Assault, 25, 28. 



42 ATTEMPTING TO DESERT. 

ASSIGNMENT OF WAGES. 

1. Enlisted man of Marine Corps — Contrary to law— Where an assignment of wages is 
made by an enlisted man of the Marine Corps it should be disregarded, as such assign- 
ment is contrary to law. See 2 A. and E. Enc, 2d Ed., 1033; File 8269-2, M. C. and 
Bureau Books No. 55, p. 9; File 8269-2, J. A. G.; 26251-797; Allotments, 4. 

ASSISTANT GENERAL STOREKEEPER. 
1. Drunkenness on duty— Tried by general court-martial. C. M. O. 5, 1915. 

ASSISTANT PAYMASTERS. 

1. Appointment of— Midshipmen eligible for. See Midshipmen, 18, 83. 

2. Same— Board found him mentally, morally, and physically qualified, but in view of his 

record in the Army, which was unsatisfactory, reported that he had failed to estab- 
lish his fitness for appointment. Department approved the finding. File 26544- 
293, Sec. Navy, 1916. 

3. Same— Age of appointment — The invariable practice of this department has always 

been to construe the law providing for appointment of assistant paymasters as ex- 
cluding all candidates who are "more than twenty-six years of age" — that is to say, 
who have passed their twenty-sixth birthday— and not as including candidates who 
are in their twenty-seventh year. This practice is known to Congress, and has received 
its sanction in thef orm of special legislation authorizing the appointment of a candidate 
in his twenty-seventh year. The same practice has been applied to the laws fixing 
the age limit for appointment to other offices in the Navy, and is supported by opinions 
of the Attorney General as well as by decisions of the courts involving substan- 
tially the same question. File 27223-12, Sec. Navv, Jan. 28, 1915; C. M. O. 6, 1915, 
15-16. See also File 26544-301:8, J. A. G., Feb. 23, 1916. 

4. Instruction of— Assistant paymasters sent to Auditor's office for instruction. C. M. O. 

17, 1915. 

5. Promotion— Advanced in rank but not in grade. See Commissions, 9. 

6. United States Marine Corps— Clerks to Assistant Paymasters. See Paymaster's 

Clerks, Marine Corps, 4, 5. 

ASSUMED NAMES. 
1. Enlistment of applicants— Under assumed names properly refused. See Name, 
Change of, 5. 

ATTACHES. See Commercial Attache; Naval Attaches; Retired Officers, 13. 

ATTEMPT TO COMMIT FRAUD. C. M. O. 4, 1916. See also Fraud, 5. 

ATTEMPTED BRIBERY. See Bribery, Attempted. 

ATTEMPTED SUICIDE. 

1. Scandalous conduct tending to the destruction of good morals— Enlisted 
man tried by general court-martial. C. M. O. 9, 1916, 3; G. C. M. Rec. 28659. 

ATTEMPTING TO ABSENT HIMSELF FROM HIS STATION AND DUTY 
WITHOUT LEAVE. 

1. Enlisted man— Charged with. C. M. 0. 15, 1889. 

ATTEMPTING TO ASSAULT HIS SUPERIOR OFFICER WHILE IN THE 
EXECUTION OF HIS OFFICE. 

1. Gunner— Charged with. C. M. O. 1, 1893. 

ATTEMPTING TO ASSAULT WITH A KNIFE ANOTHER PERSON IN THE 
SERVICE. 

1. Officer— Charged with. C. M. O. 60, 1904. 

ATTEMPTING TO BRIBE ANOTHER PERSON IN THE NAVY. 

1. Officer— Charged with. C. M. O. 23, 1886. 

ATTEMPTING TO DESERT. 

1. Enlisted men— Charged with. C. M. O. 7, 1881; 21, 1881; 54, 1882; 11, 1883; 33, 1886: 

46, 1888; 15, 1889; 54, 1890; 35, 1891; 36, 1891; 138,1896; 23, 1910,6; G. C. M. Rec. 382 
(1821). 

2. Irregular— To charge an accused with "attempting to desert," and "absence from his 

station and duty without leave from proper authority," for same period of unau- 
thorized absence is irregular. Charge should be "desertion," and where this was 
not done the findings upon the second charge and specification thereunder were 
disapproved. C. M. O. 23, 1910,6. See also Desertion, 20. 



ATTORNEY GENERAL. 43 

ATTEMPTING TO SMUGGLE LIQUOR. 

1. Enlisted man— Charged with. C. M. 0. 31, 1888. 

ATTEMPTING TO STRIKE HIS SUPERIOR OFFICER WHILE IN THE EXE- 
CUTION OF HIS OFFICE. 

1. Master— Charged with. C. M. 0. 21, 1882. 

ATTORNEY. See also Counsel; Privilege; Words and Phrases. 

1. Fees— For influencing legislation. See Debts, 18; Legislation, 2. 

2. Influencing legislation. See Debts, 18; Legislation, 2. 

3. Records ol the department— Examination of. See Records of the Department ,6,7. 

ATTORNEY GENERAL. See also Department of Justice. 

1. Blank forms — The law does not require the Attorney General to examine and approve 

forms of obligations, permits, bonds, and affidavits for future use in the other depart- 
ments. The establishment of such a practice would require his entire time and 
necessitate the imagining of the various contingencies in which their validity might 
in future be questioned and passing judgment on these possible future problems. 
(20 Op. Atty. Gen., 738. But see 27 Op. Atty. Gen., 173; File 3355-88, Nov. 7, 
1906.) 

2. Bound by the decisions of United States courts of competent jurisdiction— The 

Attorney General has himself repeatedly held that he is bound by the decisions of 
the United States courts of competent jurisdiction. C. M. O. 42, 1915, 12. 

3. Changing the law — Questions as to desirability of changing the law — On May 27, 

1909, the Attorney General submitted draft of a bill to the Secretary of the Navy, 
with suggestion that it be introduced in Congress for purpose of curing defects in a 
law considered by him in an official opinion. File 22724-7 i. But see 19 Op. Atty. 
Gen., 598; 6 Op. Atty. Gen., 432; 22 Op. Atty. Gen., 512; 24 Op. Atty. Gen., 69; 
25 Op. Atty. Gen., 98. 

4. Collision of naval vessel — Notwithstanding the fact that the damages suffered by a 

naval vessel as the result of a collision is small, the Department of Justice will take 
cognizance of the matter, and instruct the United States Attorney to bring suit 
against a private vessel responsible for the loss. File 2337-97; 199-97. 

5. Comptroller of the Treasury— Attorney General's jurisdiction not curtailed by powers 

given Comptroller — The Comptroller of the Treasury has uniformly recognized the 
superior facilities of the Department of Justice to decide important questions of law, 
even where disbursements are involved; while, on the other hand, the Attorney 
General has repeatedly recognized the superior qualifications of the Comptroller of 
the Treasury to decide certain classes of questions which involve the use of appro- 
priations and technical questions of accounting. (See for example 21 Op. Atty. Gen., 
405.) File 26254-1451:11, J. A. G., Apr. 12, 1915. See also Regulations, Navy, 10. 

6. Same— Upon request of the Secretary of the Navy the Attorney General reviewed and 

reversed several decisions of the Comptroller of the Treasury concerning the legality 
of a Navy regulation, although the comptroller declined to concur in a reference of 
the matter to the Attorney General, holding that his decisions were final and con- 
clusive upon the executive branch of the Government. (30 Op. Atty. Gen., ; 

21 Comp. Dec, 554, 357, 245.) File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 19. 

7. Department declined to request opinion — Upon a question concerning pay of the 

personnel which has been decided by the Comptroller of the Treasury, as the Attorney 
General has held that he will not render an opinion upon such a question "except 
in matters of great importance" or "without being advised that it would be entirely 
agreeable" to the comptroller to do so. File 26254-517:1, Sec. Navy, Jan. 17, 1911, 
citing 20 Op. Atty. Gen., 129. 

8. District attorney— To assist court of inquiry — Procedure to secure. File 960S-44:3, 

Sec. Navy, Mar. 21, 1914. 

9. Same — The Attorney General will not authorize the appointment of a person to assist 

a United States district attorney in the preparation of a case unless requested by 
the district attorney. File 536-4, Oct. 18, 1907. 

10. Embezzlement— Attorney General's opinion with reference to. C. M. O. 4, 1913; 39, 

1913; 25, 1916; Embezzlement, 20, 25; 28 Op. Atty. Gen. 2>6; 29 Op. Atty. Gen. 563. 

11. Foreign law— The existence of a foreign law is a question of fact to be proved by com- 

petent evidence. The Attorney General can not give an opinion as to the law of a 
foreign nation. Whether the statements of a foreign ambassador as to the true 
construction of the legislation of his own Government and the practice thereunder 
should be accepted as true is a question to be decided by the Secretary of State 
and not by the Attorney General. See File 26543-124, Aug. 4, 1914. 



44 ATTORNEY GENERAL. 

12. Jurisdiction — The Attorney General has held that he does not possess the power to 

review decisions rendered by the head of another department. He has also held 
that he has no jurisdiction to decide questions of pay, with certain exceptions. 
File 11130-23, Sec. Navy, Feb. 25, 1914. See also File 26253-391:1, Sec. Navy, Aug. 
21, 1915. 

13. Navy Regulation, validity of— Whether a Navy regulation has binding force as law 

on the accounting officers of the Government is a question of law and not one of 
accounting, and the Attorney General will render an opinion thereon upon request 
of the Secretary of the Navy, although the Comptroller of the Treasury claims his 
j urisdiction to be exclusive and declines to concur in the submission to the Attorney 

General. (30 Op. Atty. Gen., ; 21 Comp. Dec, 554, 560.) See File 26254-1451:11, 

Apr. 13, 1915. See also Regulations, Navy, 10. 

14. Question judicially determined— Opinion of Attorney General should not be asked 

where question has been judicially determined. C. M. O. 42, 1915, 12. 

15. Regulations— The Attorney General can not be required to interpret executive regu- 

lations. (18 Op. Atty. Gen., 521; 20 Op. Atty. Gen., 649; 21 Op. Atty. Gen., 36, 255; 
25 Op. Atty. Gen., 183.) The Attorney General, however, will consider and has 
repeatedly rendered opinions upon the question whether a proposed or existing 
regulation is legal. (20 Op. Atty. Gen., 649; 22 Op. Atty. Gen., 163; 29 Op. Atty. 
Gen., 264; 30 Op. Atty. Gen., 234.) Even the fact that a particular regulation relates 
to the compensation of Government employees does not oust the Attorney General's 
jurisdiction to render an opinion upon the question of its legality. (22 Op. Atty. 
Gen., 163.) File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 18. 

16. Requests for opinions of— "When an opinion is requested of the Department of Jus- 

tice on behalf of the head of another executive department, the facts must be definitely 
formulated and clearly stated by the person asking the opinion. The Attorney 
General can not be required to extract a finding of facts from correspondence or 
reports." (22 Op. Atty. Gen., 342.) "The unvarying practice of the Attorney 
General, from the foundation of the Government, has been to require a succinct 
statement of the facts and of the question of law arising thereupon upon which an 
opinion is desired." (20 Op. Atty. Gen., 493.) File 26254-1263, Sec. Navy, Aug. 19, 
1913. See also File 26254-1661, Sec. Navy, Nov. 5, 1914; C. M. O. 10, 1915, 7. 

17. Same — It is directed that all requests for opinions of the Attorney General be accom- 

panied by the written opinion of the Judge Advocate General or the Solicitor, who 
will also prepare the request for the Attorney General's opinion in accordance with 
articles R-117 (1) and R-134 (2), Navy Regulations, 1913. File 22991:1, Sec. Navy, 
Jan. 15, 1915. 

In accordance with a rule of the Department of Justice, which has been in effect 
since 1906, the written opinion of the law officer of the Navy Department (Judge 
Advocate General or the Solicitor as the case may be) must accompany the request 
of the Secretary of the Navy for an opinion of the Attorney General on any subject. 
File 27223-12, Sec. Navy, Jan. 28, 1915. 

A question which is not a "pending question" in the Navy Department is not 
within section 356, Revised Statutes, which authorizes the heads of departments to 
require opinions of the Attorney General. File 27223-12, Sec. Navy, Jan. 28, 1915; 
C. M. O. 6. 1915, 7. 

18. Same— The Attorney General has requested that the opinion of the law officer of a 

department accompany the request for his opinion by the head of such department; 
and has declined to render an opinion upon a question of law involving the per- 
sonnel of the Navy until an opinion on such question has been prepared by the 
Judge Advocate General of the Navy. File 22724-16:1, Jan. 25, 1911; 27223-12, Jan. 
20, 1915. 

19. Required to render his opinion— The Attorney General is required by R. S. 356 to 

render his opinion to the head of any Executive department "on any question of 
law arising in the administration of his department." File 26254-1451:11, J. A. G., 
Apr. 12, 1915, p. 18. See also Secretary of the Navy, 39. 

20. Reviewing decisions of other executive departments— In a long line of cases extend- 

ing from the early history of the Government to recent times, the Attorney General 
has consistently declined to render opinions, even when requested by the head of a 
department, where it appears that the officer requesting the opinion has already 
decided the case, and requests the opinion of the Attorney General merely at the 
instance of the claimants, or interested parties, who seek to have the existing decision 
reversed. File 27231-51:6, Sec. Navy, July 15, 1915; C. M. O. 27, 1915, 6-7. 






AUTOPSY. 45 

AUCTION. 

1. Clothing— Of former enlisted man. File 27222-41, Sec. Navy, July 1, 1916. 

AUCTIONEER. 

1. Appointment of, and commissions for — To make sale of vessels condemned as 
prizes. File 3977-98; 5933-98. See also Revised Statutes 4650. 

AUDITOR FOR THE NAVY DEPARTMENT. 

1. Appeals— By the Secretary of the Navy from auditor's action to the Comptroller of 

the Treasury. File 26254-431:1; 26254-599; 26254-1003. 

2. Assistant paymasters — Sent to Auditor's Office for instruction. C. M. 0. 17, 1915, 2. 

3. Death, gratuity — Actof July31, 1894(28Stat. 205-211) quoted and discussed in reference 

to payment of death gratuities and power of auditor to review. See Death 
Gratuity, 6, 23. 

4. Same — Payment of death gratuity is under cognizance of Paymaster General of the 

Navy. See Death Gratuity, 21-23. 

5. Jurisdiction of — The Navy Department maintains that the promotion of officers of 

the Navy and the determination of all questions relating thereto, including the 
qualification of the officer, the existence of the vacancy, and the application of 
section 1505 R. S., are matters exclusively within the jurisdiction of the Navy 
Department, whose action thereupon is not subject to review by any other executive 
department of the Government or office thereof. The Navy Department accord- 
ingly would not furnish the Auditor for the Navy Department with certain infor- 
mation which he requested for the evident purpose of reviewing and possibly over- 
ruling the action taken by the Secretary of the Navy in the case presented. File 
26260-347:0, Sec. Navy, Oct. 20, 1909. See also Death Gratuity, 23; Secretary 
of the Navy, 50. 

6. Pay erroneously checked — Where a pay officer erroneously checks the accounts of an 

enlisted man for additional pay under continuous service and G. O. No. 34, because 
of alleged unauthorized extension of enlistment, basing his action upon the comp- 
troller's decision of June 13, 1913 (148 S. & A. Memo., 2653), and overlooking that this 
decision was expressly modified by the comptroller in his decision of November 10, 
1913 (154 S. & A. Memo., 2919), there is no reason why the man should be required 
by the pay officer to make claim on the auditor for the amount due him, which was 
erroneously checked by the pay officer, since the extension of his enlistment for one 
year was legal; and he is, therefore, entitled to all the benefits of such extension 
under the comptroller's decision last cited. File 7657-281, J. A. G., Feb. 27, 1915; 
C. M. O. 10, 1915, 12. 

AUTHENTICATION OF COURTS OF INQUIRY. See Courts of Inquiry, 4. 

AUTHENTICATION OF DOCUMENTS. See Evidence, Documentary, 2, 3. 

AUTHENTICATION OF RECORDS OF PROCEEDINGS. See Records of Pro- 
ceedings, 10-16. 

AUTHENTICATION OF SENTENCES. 

1. Follow immediately—" It is considered desirable that the authentication of the sentence 

should follow immediately after the recording thereof," and it is particularly undesir- 
able that a blank space of practically an entire page be left between the recording of 
the sentence and the authentication thereof. C. M. O. 6, 1913, 3. See also C. M. O. 
78, 1905, 1; Court, 175; Members of Courts-Martial, 12, 48; Summary Courts- 
Martial, 4. 

2. Judge advocate— Must sign sentence. C. M. O. 30, 1900. 

3. Members— May be ordered to sign. See Members of Courts-Martial, 48. 

AUTOMOBILE. 

1. Officer— Killed while speeding. See Line of Duty and Misconduct Construed, 87. 

2. Same— Tried by general court-martial for exceeding speed limit. G. C. M. Rec. 31509, 

p. 6 of charges and specifications. 

3. Taxation by States— Of automobiles owned by Federal Government. (2S Op. Attv. 

Gen., 604.) File 28028-241. 

AUTOPSY. 

1. Discussion and general rules— For discussion of the general rules and decisions bearing 
upon the question of the legality of making autopsies and post-mortem examinations 
where there are and where there are not circumstances indicating that death resulted 



46 AUTOPSY. 

from violent or unlawful means, in cases where the law requires the coroner or attend- 
ing physician to make a report showing the cause of death, cases where the law re- 
quires a burial certificate to be issued before interment of the remains, etc. See File 
13673-1587. J. A. G. 
2. Evidence— Disclosed by autopsy. C. M. O. 128, 1905, 4. 

AVIATION. 

1. Naval Militia. See Am Service; Aircraft; Naval Militia, 1. 

AWAITING SENTENCE. 
1. Prisoners— Pay of. See Pay, 15. 

BAD-CONDUCT DISCHARGE. 

1. Ambiguous— Courts-martial should indicate in sentences the character of discharge in 

order to avoid ambiguity. C. M. O. 49, 1910, 14-15. See also Discharge, 3. 

2. Deck courts— A deck court is not authorized to adjudge a sentence including bad- 

conduct discharge. C. M. O. 24, 1909, 3; 1, 1914, 5; 35, 1915, 7. 

3. Execution of — Where discharge is executed before sufficient pay has accumulated under 

the provisions of 1-4893 to execute total loss of pay adjudged by sentence, the bad- 
conduct discharge operates itself as a remission of the balance. C. M. O. 53, 1914, 6; 
22, 1915, 5. See also Discharge, 19,21; Set Off, 1. 

4. Foreign countries— Summary courts-martial may sentence petty officers and persons 

of inferior ratings to discharge from the service with bad-conduct discharge; but the 
sentence shall not be carried into effect in a foreign country. See File 26287-580; 
26287-800; A. G. N. 30. 

5. General court-martial— May adjudge a sentence including bad-conduct discharge. 

See C. M. O. 92, 1895; 17, 1910, 7; 33, 1914, 4; 36, 1914, 2; 49, 1914 1, 2; 3, 1916, 1. 

6. Same— The department has returned cases for revision in which bad-conduct discharges 

have been adjudged where the schedule of punishments in General Order No. 110 
prescribes that a dishonorable discharge should be a portion of the sentence. (See 
File 26251-11322, Sec. Navy, Dec. 16, 1915; G. C. M. Rec. 31401. See also File 26251- 
11343.) C. M. O. 49, 1915, 11-12. See also General Order No. 110, July 27, 1914,20. 

7. Same — Should adjudge only bad-conduct and dishonorable discharges. C. M. O. 49, 

1910, 14-15. See also Discharge, 3. 

8. General Order No. 110. See General Order No. 110, July 27, 1914, 19. 

9. Pay, forfeiture of— Remitted by the execution of bad-conduct discharge. See Bad- 

Conduct Discharge, 3; Pay, 87. 

10. Summary courts-martial— In every case where a sentence involving bad-conduct 

discharge has been imposed, it shall be the duty of the convening authority, before 
acting upon the proceedings, to spread upon the record a brief synopsis of the service 
of the accused and of the offenses committed by him during his current enlistment. 
C. M. O. 1, 1914, 4; 36, 1914, 3, 4. 

11. Same — This shall be done even when the bad-conduct discharge has been conditionally 

remitted under the provisions of General Order No. 110. C. M. O. 36, 1914, 3-4. 

BADGES, CAMPAIGN. See Campaign Badges; China Campaign Badges; Philippine 
Campaign Badges. 

BADGES OF MOURNING. 

1. Officer— Failing to wear, for death of naval officer when ordered— Tried by general 
court-martial. C. M. O. 35, 1892. 

BAIL. 

1. Enlisted man— Who, after arrest by the civil authorities while on leave for a criminal 

offense, is granted bail and returns to his ship, may be allowed leave of absence to 
appear for trial, upon an official statement from the court as to the facts. File 4496-7. 
See also File 5322, May 23, 1906; 26254-45, June 19, 1912; General Order No. 121, 
Sept. 17, 1914, 14; Jurisdiction, 8. 

2. Same — An enlisted man of the naval service, released from the custody of the civil 

authorities on bail, who reports at his regular station for duty, is not to be deprived 
of his pay after so reporting simply because, due solely to the fact that he was on 
bail, no naval duty was assigned him. (22 Comp. Dec, 374. See also File 9663-31.) 
C. M. O. 3, 1916, 3. See also File 26524-222:4. 



BATTERY. 47 

BALL AND CHAIN. 

1. Sentence of general court-martial— Held to be fatally defective and set aside. G. 0. 
116, March 23, 1869. See also C. M. O. 29, 1890. 

BALL PLATING. 

1. Sunday, on— Navy yards, at. See Sunday Laws. 

BANDS. 

1. Marine Band — The President has authority, as Commander in Chief, to order Marine 

Band to Raleigh, N. C. (File 3679-2), and to detail it to appropriate duty anywhere 
(File 4288-6, April 22, 1907), including its participation in a charity fete. (File 4288-4, 
April 18, 1907.) See also Pkesident of the United States, 4. 

2. Same—" The most famous organization of the kind connected with the public establish- 

ment." 14 Sol. 27, May 27, 1908 (14 J. A. G., 27). 

3. Same— The Marine Band and members thereof are not prohibited from engaging in 

their profession in civil life by sec. 35 of the act of June 3, 1916 (39 Stat., 188-189), 
without remuneration, even though this may possibly interfere to some extent with 
the employment of local civilians. File 4924-435, J. A. G., June 20, 1916; 4850-219, 
J. A. G., Jan., 1917. See also C. M. O. 3, 1917, 6. 

4. Navy bands— Held: That the term "Navy bands" includes the U. S. Marine Band, 

within the meaning of the act of May 13, 1908 (35 Stat., 127, 153); 14 Sol. 24, May 27, 
1908 (14 J. A. G., 27). 

5. Same— The act of May 13, 1908 (35 Stat., 127, 153), as held by the Attorney General, is to 

be "strictly construed" (27 Op. Atty. Gen., 90, 95), and certainly can not be held to 
prohibit any member of a Navy band from instructing amateur bands, as the giving 
of lessons or instructions does not constitute "furnishing music." File 4850-210, 
J. A. G., April 22, 1916. See in this connection the Act of Aug. 29, 1916 (39 Stat., 612). 

BANISHMENT. 

1. Guam— In the case of an enlisted man of the Marine Corps who was tried by the civil 

courts of Guam for an offense and sentenced to banishment for six months and pay- 
ment of costs, it was recommended "that the governor of the island of Guam be 
directed to issue immediately the necessary order or decree abolishing the pun- 
ishment of banishment as an appropriate sentence to be adjudged by the civil courts 
of said island in the cases of all persons in the naval or military service of the United 
States," and "that the governor be directed, under the paramount authority of the 
department, and under his authority to grant reprieves and pardons, to remit that 
part of the sentence adjudged" in this man's case, so far as it relates to banishment. 
File 9351-976, J. A. G., Dec. 3, 1910. 

2. Subig Bay Naval Reservation. See Jurisdiction, 96. 

BAPTISM, CERTIFICATE OF. C. M. O. 217, 1902, 3. 

BAR OF TRIAL, PLEA IN. See Jeopardy, Former; Plea in Bar. 

BARGE, NAVY COAL. 

1. Capsized and lost in typhoon. C. M. O. 7, 1915. 

BARRACKS, MARINE. See Marine Corps. 

BASEBALL ON SUNDAY AT NAVY YARDS. See Sunday Laws. 

BASKET BILGE STRAINERS. 

1. Chief machinist— Installed one in main feed tank improper for purpose. C. M. O. 
36, 1915, 1-2. 

BATTALIONS. 

1. Separate or detached — Convening of summary courts-martial . See Summary Courts- 
Martial, 22. 

BATTERY. 

1. Definition— "Two offenses against the person and personal security, usually existing 
in the facts of cases together, and practically regarded by the law as one, are assault 
and battery. A battery is any unlawful beating, or other wrongful physical violence 
or constraint, inflicted on a human being without his consent; an assault is less than 
a battery, where the violence is cut short before actually falling: being committed 
whenever a reasonable apprehension of immediate physical injury, from a force 
already partly or fully put in motion, is created. An assault is included in every 
battery." (1 Bish. Cr. L., sec. 548.) 

50756°— 17 4 



48 BATTERY. 

"A battery, or, as it is sometimes called, an assault and battery, is an unlawful 
touching of the person of another by the aggressor himself, or by any other substance 
put in motion by him." (3 Cyc, 1021.) ' " . , , ,. ... 

"In most instances a battery is an assault which has traveled to the accomplish- 
ment of its purpose; being the substantive offense, to commit which the assault is 
the attempt. The distinction appears to be that in every battery there is an assault. ' 
(2Bish. Cr. L., sec. 71.) , „ no _ w 

2. Drunkenness— As a defense. CM. 0.8, 1911, 5. See also Assault, 17, 18; Deunk- 

ENNESS, 7-9. 

3. "Mere battery." C. M. O. 42, 1909, 10. 

BATTERIES, STORAGE. 

1. Submarines— Officer tried by general court-martial for faulty mspection of. C. M. O. 
41, 1915. 

n imrpr pi 

1. Battle signal book— Officers tried by general court-martial for loss of. C. M. O. 7, 1916; 

8, 1916. See also Books, 6; Confidential Publications, 1, 3. 
2 Commanding officers— General rule to observe should be " Fight if there is a chance 

of victory" and not "Do not fight if there is a chance of defeat." G. O. 68, Dec. 6, 

1865. 

BAYMAN. 

1. Hospital Corps, of— Tried by general court-martial. See C. M. O. 29, 1880; 29, 1890; 

132, 1896. 

2. Same— Enlistment of. U. S. Reg. Navy Cir. No. 5, June 1, 1877. 

1 Specifications— Under "Drunkenness" alleged that accused was under influence of 
beer. C. M. O. 20, 1888. See also Deunkenness, 10. 

REC^CINC 
1. Enlisted man— Tried by general court-martial under charge of "Scandalous conduct 
tending to the destruction of good morals." C. M. O. 31, 1915, 2. 

BEING DISRESPECTFUL, TO HIS SUPERIOR OFFICER IN LANGUAGE AND 
DEPORTMENT WHILE IN THE EXECUTION OF THE DUTIES OF HIS 
OFFICE. 

1. Officer— Charged with. C. M. 0. 15, 1914, 1. 

BENEFICIARY. See Death Geatutty; Wills. 
BENEFICIARY SLIPS. -See Death Geatutty, 8. 
" BEST EVIDENCE RULE." See Caebon Copies. 

R-pTTTFR EVIDENCE 

1. Court-martial-Should call for it if it is available. C. M. O. 28, 1909, 3; 37, 1909, 5, 9. 

1 Acting master's mate— Dismissed for teaching disbelief in Bible and God. File 
26367-2, J. A. G., July 8, 1909. See also File 26256-111:2. 

BICHLORIDE OF MERCURY. 

1 Death— Hospital apprentice administered to patient (enlisted man) by mistake. C. M. O. 
6, 1915, 12. See also Line of Duty and Misconduct Consteued, 74, 75. 

BILLS. 

l. Mess bills. See Messes. 

BILLS OF EXCEPTIONS. . 

1 No such thing— As a bill of exceptions in naval court-martial proceedmgs. C. M. O. 
31, 1911, 7. See also Exceptions, 2, 3. 

BINDING OF COURT-MARTIAL RECORDS. ' " 

1 Records should be bound properly— Forms of Procedure, 1910, page 10, provide that 
"the record, before being forwarded to the convening authority, must have all the 
pages, documents, and exhibits securely bound together by at least two through fasten- 
ers at the top margin, and care shall be exercised to see that the fasteners are through 



BINDING OF COURT-MARTIAL RECORDS. 49 

every such page, document, and exhibit." Navy Regulations provide that "records 
of proceedings of summary courts-martial shall be kept and made up in the manner 
hereinafter prescribed for records of general courts-martial and in accordance with the 
instructions contained in the authorized forms of 'procedure' 1 '' (Navy Regulations, 1913, 
R-624), and they also provide that "the record of all naval courts-martial" shall 
leave a margin at the top of each leaf of 2 \ inches, through which margin, " the leaves 
are to be fastened." (Navy Regulations, 1913 , R-826.) It is, therefore, improper to 
use "clips" instead of "fasteners" since the former do not comply with the instruc- 
tions above outlined. The above regulations are held to be binding upon convening 
authorities and senior officers present as well as the members and recorders of sum- 
mary courts-martial. File 26287-2985, J. A. G., Mar. 22, 1915; C. M. O. 16, 1915. See 
also G. C. M. Rec. 30485. 
2. Same— Should be bound at top, not left, margin. C. M. O. 20, 1915, 5. 

BINNACLE LIST. See Orders, 38. 

BIRTH. 

1. Applicant lor enlistment— Date and place of. See Oaths, 39. 

BIRTH CERTIFICATE. 

1. Minor— Enlistment of— Birth certificate as proof of minority. C. M. O. 6, 1915, 14. See 
also Fraudulent Enlistment, 59. 

BLACKMAIL. See File 26251-12159, Sec. Navy, Oct. 7, 1916; Libel; Privilege. 

BLANK FORMS. See Attorney General, 1. 

BLOCKADES. 

1. "Blockading vessels and cruisers "—Instructions for. See General Order No. 492, 
June 20, 1898. See also File 4496-60, June 15, 1907. 

BLOTTER. 

1. Gouging by warrant officer— A warrant officer (gunner) was tried by general court- 
martial on the charges of "Conduct to the prejudice of good order and discipline" 
and "Conduct unbecoming and officer and a gentleman," the specifications there- 
under alleging that he did, while undergoing a written professional examination, 
knowingly, wilfully, corruptly, fraudulently, secretly, and without the knowledge 
or permission of the examining board, take into examining room four blotters, having 
written and copied upon them facts in answer to questions that might be asked him. 
He was found guilty and dismissed. File 26251-11982, June 23, 1916; G. C. M. Rec. 
32300; C. M. O. 20, 1916. See also Gouging; Midshipmen, 22; Officers, 13. 

BOARDS. 

1. Constitution of— Certain boards, not existing or convened by statutory authority as 

boards of survey on equipage or supplies, may consist of a single officer. Boards of 
medical survey may consist of a single officer. Some statutory boards, consisting of 
several members, may act when but one member is present, in certain exceptional 
cases, by act of July 25, 1882 (22 Stat., 175). Some statutory boards, consisting of sev- 
eral members, may act when a specified quorum is present, or by some definite num- 
ber, by sections 2039, 2041, 2042, 4827, 5582 of the Revised Statutes. But where the 
language of the statute is couched in the plural number, more than one member of the 
board is required for the board to act. But the intent of the law would be the con- 
trolling principle in determining whether one medical officer can constitute a "board 
of naval surgeons," and it is not believed to be the intent of the law that one medi- 
cal officer can constitute a board as provided for in section 1493 , R . S. File 26521-30, 
J. A. G., Jan. 25, 1912. See also Board of Medical Examiners, 2. 

2. Members— It is not necessary that all the members of a court or board sitting at a navy 

yard or naval station should first report to the commandant, but the president should 
do so, giving the commandant a list of the officers on such court or board. File 
811-04. 

3. Precedence of members. See Precedence, 10. 

4. Statutory— Constitution of. See Boards, 1. 

BOARD, ACADEMIC BOARD OF THE NAVAL ACADE31T. See Academic Board 
of the Naval Acadkmy. 

BOARDS, EXAMINING. See Marine Ex amining Boards; Naval Examining Boards. 



50 BOARDS OF INVESTIGATION. 

BOARDS OF INQUEST. 

1. Constitution of— Boards of inquest shall be composed of not less than three commis- 

sioned officers, of whom one at least shall be of the Medical Corps. (R-321.) 

2. Judge Advocate General— Shall revise and report upon the legal features of and have 

recorded the proceedings of boards of inquest. (R-134.) 

3. Nature of— The proceedings of a board of inquest is in no sense a trial of an issue or of 

an accused person. This board performs no real judicial function, but is convened 
only for the purpose of informing the department in a preliminary way as to the facts 
involved in the inquiry. C. M. 0. 7, 1914; 6. 

The evidence adduced before a board of inquest in the Navy, no member of the 
board or any witness being sworn " is solely for the information of the Navy Depart- 
ment and for the purpose of enabling the department to decide as to the necessity 
and expediency offurther action." File 26250-839:4, Sec. Navy, Oct. 9, 1916. 

4. Oaths not authorized— Neither the members of the board nor any person that may 

be examined may be sworn. (R-321(3).) File 26250-839:4, Sec. Navy, Oct. 9, 1916. 

5. Opinion to be expressed on line of duty and misconduct— In every case the board 

shall carefully investigate and state in the record, whether or to what extent, in their 
opinion, the death of the individual was due to disease contracted or casualties or 
injuries received while in tne line of his duty and not the result of his own misconduct. 
In all cases where the board of inquest expresses the opinion that death was not in 
the line of duty, the board will, in addition to such opinion, state whether or not, in 
its opinion, the ideceeased met his death as the result of his own misconduct. C. M. O. 
42, 1915, 9. See also File 26250-735, Sec. Navy, Nov. 30, 1915; 26250-812, Sec. Navy, 
June 6, 1916. 

6. Private litigation — Where a copy of the record of a board of inquest was requested for 

use " in connection with possible private litigation by ' the parents of this young man ' 
against" a citv street railway company, the department declined to grant the 
request. File 26250-839:2, J. A. G., Sept. 27, 1916. 

7. Revision— The record may be returned to the board for such revision as is thought 

necessary. 

"BOARD OF INQUIRY.* 

1. Naval Academy— The act of April 9, 1906 (34 Stat. 104), provides that the truth of any 
issue of fact raised as to whether the continued presence of anj r midshipman at the 
Naval Academy is contrary to the best interests of the service, "shall be determined 
by a board of inquiry convened by the Secretary of the Navy under the rules and 
regulations for the government of the Navy." C*. M. O. 31, 1915, 11. 

BOARDS OF INSPECTION AND SURVEY FOR SHIPS. C. M. O. 41, 1915. 

BOARDS OF INVESTIGATION. 

1. Approval or disapproval— Neither approval or disapproval is mandatory upon the 

department. File 26283-522, J. A. G., Feb. 12, 1913. 

2. Civil employee — Under the law and regulations all boards of investigation in the naval 

service are to be revised and reported upon by the Olhce of the Judge Advocate 
General. Although such boards may be convened to investigate tne conduct of civil- 
ian employees at navy yards, they should be reviewed and reported upon by the 
Judge Advocate General, not only because of the express provisions of law and regu- 
tion, but also because of the fact that the commandant of the yard, or other persons 
in tne Navy may be responsible for the irregularities or misconduct of civilian em- 
ployees as well as other subordinates. (See C. M. O. 129, 1898.) File 26283-789, 
J. A. G., May 17, 1915. 

3. Collision— Board inquiring into circumstances. See Collision, 3. 

4. Counsel — A midshipman under investigation was represented by counsel of his own 

choice. File 5252-73, Oct. 2, 1915. 

5. Evidence, as— The statement made by an accused before a board of investigation , when 

such statement takes the complexion of an admission against interest or a confession , 
is admissible as evidence before courts-martial. G. C. M. Rec. No. 11279. 

6. Same — A court-martial erred in excluding evidence of the statement of the accused to 

the investigating board, but the court properly excluded the conclusions of that 
board and the comments thereon of the commander in chief and the Secretary of the 
Navy. C. M. O. 101, 1903, 10. 

7. Same— The proceedings of the court were regular, but an error was made in not admit- 

ting in evidence the statements made by the accused before the board that investi- 
gated the circumstances leading to the present trial. Statements of this character 
ate uniformly admitted by courts-martial, as, for instance, the statement made by 



BOARDS OF INVESTIGATION. 51 

an accused person, a deserter, upon investigation by the commanding officer of the 
vessel on board of which he is delivered. C. M. O. 43, 1906. 

8. Same — The judge advocate was unable to locate or secure two witnesses who had testi- 

fied under oath before a board of investigation involving the subject matter for which 
the accused was undergoing trial by general court-martial. The judge advocate, 
therefore, offered in evidence the sworn testimony of these two witnesses before this 
board of investigation. Counsel for accused objected but the court admitted the 
evidence, whereupon counsel for accused withdrew the objection. G. C. M. Rec. 
30684, pp. 294, 306, 307. 

9. False statements— Before a board of investigation. See False Statements, 1. 

10. Index for — When over 20 pages. See Index, 3. 

11. Judge Advocate General— Under the law and regulations should revise and report 

upon all boards of investigation. See Boards of Investigation, 2. 

12. Junior officer— Investigating senior. See File 26283-945, Sec. Navy, Dec. 9, 1915. 

13. Nature of — A board of investigation is convened to enable those in authority to obtain 

accurate information in order that responsibility may be properly placed, if any 
exists, to take appropriate action in the premises, and when strangers are involved 
to protect the Government from unjust claims. This can not be done unless the 
board performs its duty with great care and thoughtfulness. File 26835-525:1, 
Sec. Navy, Nov. 30, 1915. 

14. Oaths. See Oaths, 7. 

15. "One officer" boards of investigation— An officer was tried by general court-martial, 

but before final action was taken the department appointed one officer as a board to 
conduct a searching investigation into all matters pertaining to the case. C. M. O. 
26, 1914, 2. See also File 28478-15:1; 26543-151:1; Bd. of Invest. No. 5301: 6134; File 
16711:3, July 12, 1911; 28478-34:2, July 7, 1916; 9351-1564, Aug. 15, 1916; R-316. 

16. Reconvened— Because of the " careless manner" in which the investigation was con- 

ducted and for failing "to carry out provisions of the precept," and for conducting 
the investigation in a "careless," "cursory," and "perfunctory" manner. File 
26835-525:1, Sec. Navy, Nov. 30, 1915. 

BOARDS OF MEDICAL EXAMINERS. 

1. Commander in chief— Not authorized to make changes in. See Boards of Medical 

Examiners, 5. 

2. Constitution of— The board of naval surgeons prescribed by section 1493, Revised 

Statutes, should consist of more than one medical officer. While in a number of 
eases the convening of such a board composed of but a single officer, has been 
sanctioned on grounds of convenience , it is believed that the plain intent of Congress 
is clearly stated to be that such a board should consist of more than one naval surgeon. 
Had Congress intended otherwise, it might well have made such intent evident. 
File 26521-30, J. A. G., Jan. 25, 1912. See also File 8006-1. Sept. 6, 1907; 28687-14; 
J. A. G., Dec. 14, 1916, p. 2; Boards, 1. 

3. Marine Corps. See Promotion, 165. 

4. Medical Reserve Corps— An officer of the Medical Reserve Corps is available for any 

naval (military) service that could be properly assigned to any naval medical officer, 
or, as designated in section 1493, Revised Statutes, any naval surgeon, provided he be 
upon active duty and the duty be appropriate to his grade, and there be no specific 
restriction in law prohibiting such assignment. It was therefore held: That there is 
no restriction upon a member of the Medical Reserve Corps, on active duty, acting 
as a member of a board of medical examiners where duly authorized. File 26521-128, 
J. A. G., Oct. 20, 1915; C. M. O. 35, 1915, 10. 

5. Nature of, and law authorizing— Section 1493 of the Revised Statutes provides for 

examinations by boards of medical examiners as follows: "No officer shall be pro- 
moted to a higher grade on the active list of the Navy, except in the case provided 
in the next section [physical disqualification occasioned by wounds received in line 
of duty], until he has been examined by a board of naval surgeons and pronounced 
physically qualified to perform all his duties at sea." Although the language of this 
section of the Revised Statutes does not specifically require the President, or the 
Secretary acting for him, to sign precepts convening boards of medical examiners. 
the fact that the Secretary of the Navy does sign the precept convening them 
has become such an established custom as to have the force of Taw. In view of The 
above the department held that the commander in chief of a fleet lias no authority. 
nor can he legally be granted authority by the department, to make changes in the 
constitution of naval examining boards and boards of medical examiners. File 
28026-1080:2, Sec. Navy, Aug. 4, 1915; C. M. O. 29, 1915, 6. 



52 BOAEDS OF MEDICAL EXAMINERS. 

6. Officer— Has not a legal right to be ordered before a board of medical examiners for 

promotion instead of being ordered before a retiring board, where he is due for pro- 
motion, but the records of the department in his case are such as to establish prima 
facie his physical incapacity for active duty. C. M. O. 22, 1915, 10. 

7. Same— An officer is ordered before a board of medical examiners with a view to deter- 

mining his physical fitness for promotion; in other words, this examination is made 
for the sole purpose of establishing whether or not an officer is qualified for the duties 
of a higher grade, and is not, and never was intended to be, a useless formality which 
must be observed, despite the fact that the department's records already fully estab- 
lish that the officer is prima facie not physically qualified for active duty. File 
27231-63, J. A. G., May 27, 1915. 

8. "One officer" board. See Boards, 1; Boards of Medical Examiners, 2. 

BOARDS OF OFFICERS OF THE REGULAR NAVY. 

1. Naval Militia— Physical examination prescribed by General Order No. 150. See 
Naval Militia, 29. 

BOARDS OF NAVAL SURGEONS. See Boards of Medical Examiners. 

BOARDS OF SURVEY. 

1. Lloyds— Officer granted permission to accept fee. See Merchant Vessels, 4. 

2. One officer— May consist of a single officer. See Boards, 1. 

BOARDS, RETIREVG. See Marine Retiring Boards; Naval Retiring Boards. 

BOARDING CALLS. 

1. Officer drunk— Tried by general court-martial. C. M. O. 39, 1909. 

BOATSWAINS. See also Warrant Officers. 

1. Acting boatswain— Tried by general court-martial. C. M. O. 102, 1905. 

2. Same — Sentence of dismissal confirmed by the President. C. M. O. 102, 1905. 

3. Chief boatswains. See Chief Boatswains. 

4. Deck courts— Boatswain actually in command of a naval vessel may convene. See 

Deck Courts, 4. 

5. Deck court officer— Boatswain not authorized to act as. See Deck Courts, 62. 

6. General courts-martial— Not eligible to sit as member of. C. M. O. 7, 1914, 11. 

7. Same— Boatswains tried by. C. M. O. 11, 1915; 13, 1915. 

8. Promotion of— Suspension from promotion. See Promotion, 205. 

9. Same— To ensign. See Appointments, 18. 

10. Summary courts-martial— Boatswain actually in command of a naval vessel may 

convene. C. M. O. 6, 1915, 5. See also Summary Courts-Martial, 7, 21. 

11. Same— Not eligible to sit as member of. C. M. O. 7, 1914, 11; 6, 1915, 5. See ateo Sum- 

mary Courts-Martial, 7, 21. 
BODIES, DISPOSITION OF. See Disposition of Bodies. 
BOILERS. 

1. Explosions. See C. M. O. 36, 1915; 37, 1915; 38, 1915; Line of Duty and Miscon- 

duct Construed, 6. 

2. Naval Instructions, 1913 — It is provided that "should any difficulty be experienced in 

feeding a boiler, the combustion shall be checked at once, by closing the dampers 
and ash-pan doors if necessary, and steps taken to find the cause." (1-3117 (1).) It is 
further provided that, "whenever the water in any water-tube boiler falls below the 
lowest try cock and out of sight in the gauge glasses the fires shall be hauled. * * * 
No attempt shall be made to restore the normal water level by increasing the supply 
of feed water. Fire extinguishers, if fitted, or otherwise a fire hose or wet ashes, 
shall be used to quench or deaden coal fires before hauling them. (1-3118(2).) 
C M. O. 37, 1915. 

3. Tubes. See Vessels, 1, 2. 
BOOKS. 

1. Battle signal books— Officers tried by general court-martial for loss of. C M. O. 7, 

1916; 8, 1916. See also CoNFLDEN'nAL Publications, 1. 

2. Law books. See Law Books. 

3. Library book lost— Checkage of pay. See Pay, 18. 

4. Obscene book. Sending through mails. See Obscene Books and Postal Cards. 

5. Officers publishing— Permission granted to publish specific articles or books but 

must first be submitted to the department. File 2479-3 ; 5, 1907. 

6. Tactical signal book— Officer tried by general court-martial for loss of. C. M. O. 12, 

1910. See also Battle, l; Confidential Publications, 1, 3. 



BREAKING ARREST. 53 

BORROWING MONEY. 

1. Master-at-arms— Charged with "Violation of a lawful regulation issued by the Sec- 

retary of the Navy," the specifications thereunder alleging that accused loaned 
money at interest to crew. C. M. O. 21, 1910, 6. See also Lending Money. 

2. Officer from enlisted man — Officer borrowed money from ward-room steward, 

giving his commission as security. Tried by general court-martial and dismissed. 
G. O. 150, Feb. 11, 1870. 

3. Warrant officer from enlisted men— Tried by general court-martial under "Viola- 

tion of a lawful order issued by the Secretary of the Navy." Lost numbers and 
publicly reprimanded. C. M. O. 7, 1909; 34, 1916, 2. See also C. M. O. 121, 1907. 

BOUNTY. 

1. Clothing outfits— On enlistment. See Clothing Outfits. 

BOXING. 

1. Line of duty and misconduct. See Line of Duty and Misconduct Construed, 7-9. 

2. Manslaughter. See Manslaughter, 13. 

BRACKETS. 

1. Findings— Use of brackets in findings. See Findings, 9. 

BREACH OF TRUST. 

1. Never trivial— A breach of financial trust or misuse of public funds is never trivial. 
C M. O. 107, 1901, 2. 

BREAD AND WATER. 

1. Confinement on bread and water — Summary courts-martial will exercise care and 

discretion in resorting to this punishment, and not award it in any case for a longer 
period, consecutively, than five days. Cir., Sec. Navy ; May 18, 1872; K-619 (4). 

2. General courts-martial— May impose a sentence including bread and water. C. M. 

O. 15, 1890; 26, 1893; 103, 1893; 1, 1914, 4; 9, 1914, 3. 

3. Severe punishment— " The frequency with which punishment, by solitary confine- 

ment on bread and water, or on diminished rations, is imposed by the sentences of 
summary courts-martial, meets with the disapprobation of the department. This 
punishment is a severe one; and it was not, probably, contemplated by the law 
that it should be generally resorted to for the correction of offenders. It is believed 
that other authorized punishments will, in most cases, prove more effectual than 
this. In cases where punishment by confinement on bread and water or diminished 
rations is imposed by sentence of courts-martial, that portion of such sentences will 
be disapproved by the department." G. O. 287, Feb. 3, 1882. But see A. G. N. 30. 

4. "Solitary" confinement — An enlisted man of the Navy was tried by summary court- 

martial and sentenced to confinement for fifteen days on bread and water, with full 
ration every third day. Since sentences involving confinement on bread and water 
or on diminished rations are illegal unless it is expressly provided that such con- 
finement is to be "solitary" (A. G. N. 30; Navy Regulations, 1913, R-619 (1 ); Forms 
of Procedure, 1910, p. 162; C. M. 0. 15, 1910, p. 11), the department directed that the 
sentence be set aside. File 26287-3017, Sec. Navy, June 25, 1915; C. M. O. 22, 1915, 5. 

5. Same— Certificate of medical officer. See Confinement, 5. 

BREAKING ARREST. See also Arrest. 

1. Articles for the Government of the Navy—" Breaking arrest " is not specifically men • 

tioned in the Articles for the Government of the Navy. C. M. O. 7, 1911, 12. 

2. Charge — The offense of breaking arrest should be specified under the charge, "Breaking 

arrest." While the offense of "breaking arrest" is not specifically mentioned in 
the Articles for the Government of the Navy, it is in the Limitation of Punishment 
prescribed thereunder by tne President. (Navy Regulations, 1913, R-900, page 
93 R; Forms of Procedure, 1910, p. 319.) A form of specifications is also shown under 
the caption "Breaking Arrest" on page 92, Forms of Procedure, 1910. Instructions 
were issued in Court-Martial Order No. 7, 1911, p. 12 (Case of Bryhn) to the effect 
that "while a form of specification is shown under the caption ' Breaking arrest' in 
the 'Forms of Procedure' issued by the department, and many precedents exist for 
so charging this offense, it would seem that it should more properly be charged as 
'conduct to the prejudice of good order aud discipline,' in conformity with article 1705. 
paragraph 4, of the Navy Regulations, 1909 [Navy Regulations, "1913, R-712 (4)].'* 
See File 26262-1065. These instructions, however, were issued prior to November 
9, 1911, the date of C. N. R. No. 17, which addod the offense of " Breaking arrest," 



54 BREAKING ARREST. 

and a punishment therefor, to the Limitation of Punishment. The offense of " Break- 
ing arrest" should, therefore, be specified under the charge of '-'Breaking arrest" 
andnot under "Conduct to the prejudice of good order and discipline." SeeC. M. O. 
7, 1911, 1C-13. Sec also Arrest, 38. 
3. Same— Where an enlisted man was held pending investigation of a report of miscon- 
duct against him ; after expiration of enlistment, and broke arrest and deserted 
before the determination of the advisability of his trial by general court-martial for 
said misconduct, Held, that the breaking of arrest should be charged as "Conduct 
to the prejudice of good order and discipline" and that, although such occurred 
after expiration of term of enlistment, he was amenable to trial therefor, since the 
misconduct occurred beforo he had been discharged. An enlistment can be termi- 
nated bv death or discharge only, and the enlisted man can not himself terminate 
the enlistment. File 26251-5447, J . A. G., Dec. S, 1911. Seealso Breaking Arrest, 2. 

4. "Conduct to tlie prejudice of good order and discipline"— " Breaking arrest" 

should not bo charged under. See Breaking Arrest, 2. 

5. Enlisted men— Charged with. C. M. O. 208, 1902, 2; 209, 1902, 2; 23, 1910, 6; 7, 1911, 5; 

5, 1914, 2; 14, 1914, 1; 5, 1916, 1. 

6. Escape— Breaking arrest was designated as escape at common law. File 26262-1065, 

J. A. G. Seealso Escabe, 1, 2. 

6. Midshipman— Charged with. G. C. M. Rec. 25104. 

7. Officer— Breaking arrest after being placed under arrest by Mexican civil authorities. 

C. M. O. 7, 1914. 

8. Pharmacist— Charged with. C. M. O. 96, 1906, 1. 

9. Proof of— Before the charge of "Breaking arrest" can be proved, it must appear that 

the accused was actually placed under arrest. C. M. O. 7, 1911, 10-12. See also Ar- 
rest, 38; Breaking Arrest, 14. 

10. Suspension from duty. See Suspension from Duty, 6. 

11. Technical. C. M. O. 7, 1911, 12. 

12. Warrant officer— Charged with breaking arrest under "Conduct to the prejudice of 

good order and discipline." C. M. O. 17, 1922, 1. But see Breaking Arrest, 2. 

13. Same— Charged with "breaking arrest." C. M. O. 30, 1905. 

14. What constitutes— "Where accused was charged with "breaking arrest" and evi- 

dence showed that the master-at-arms had merely placed his hand on the accused's 
shoulder, telling him that he was under arrest and to stand where he was while 
tne master-at-arms "tried to stop the further gathering of a crowd in the street"; 
that the accused apparently did not comprehend that he was under arrest; and that 
he left the scene of tne affray but voluntarily returned to his ship the next morn- 
ing, Held, that the eA'idence was not sufficient to show that the accused had a 
' "criminal intent to evade the due course of justice" and that the charge of "break- 
ing arrest" was not proved. C. M. O. 7, 1911, 10-13. See also File 26262-1CG5; 
Arrest, 10, 38. 

BRIBE. 

1. Acting ensign— Dismissed by general court-martial for taking 850 from recruits in 

return for using his influence to have them transferred. G. O. 46, Jan. 5, 1865. 

2. Enlisted man— Charged with accepting a bribe under "Scandalous conduct tending 

to the destruction of good morals." C. M. O. 42, 1915, 5. 

BRIBERY. See C. M. O. 22, 1915, 3; 42, 1915, 5. 

BRIBERY, ATTEMPTED. 

1. Upon person— In naval service, by civilians. File 7657-142, J. A. G., March 21, 1912. 

BRIBING PATROL. See C. M. O. 22, 1915, 3. 

BRIEFS. See also Appeals. 

1. Arguments— Oral arguments upon the admissibility of evidence and upon inter- 

locutory proceedings may be allowed, but shall not be recorded; briefs of such argu- 
ments, if prepared at his own expense and subsequently submitted to the court by 
the party who made the same shall be appended to the record. C. M. O. 27, 1913, 
12; 31, 1914, 2; 49, 1915, 9. Seealso Arguments, 4. 

2. Civilian counsel— Briefs submitted to department. C. M. O. 129, 1898, 7; 4, 1914; 

7, 1914, 4. 

3. Officers acting as counsel— Briefs submitted to department. C. M. O. 6, 1915, 6. 



BUREAU CHIEFS. 55 

BRIG OF RECEIVING SHIP. 

1. Prisoners in— Treatment of, while awaiting trial. See Prisoners, 4. 

2. "Sweat box." See Sweat Boxes, 1. 

BRIGADES, MARINE. See Convening Authority, 27; Jurisdiction, 77; Marine Corps, 
9,10. 

BRIGADIER GENERAL. 

1. Marine Corps. See Marine Corps, 11, 36; Promotion, 16-18. 

BROMIDE OF POTASH AND CHLORAL. 

1. Officer— Taken by. C M. O. 56, 1880, 2. 

BROTHER. 

1. Deatb gratuity— Beneficiary. See Death Gratuity, 9. 

"BRUTAL" HAZING. See Hazing, 6. 

BUGLER, UNITED STATES NAVY. 

1. General court-martial— Tried by. C. M. O. 6, 1915, 8. 

BULLETIN IN COURT-MARTIAL ORDERS. 

1. Explanatory note concerning— The following digest is published for the information 

of the service in general. Heretofore the practice has been to limit "Remarks" in 
Court-Martial Orders to questions growing out of the records of courts-martial which 
have been reviewed, which practice will be continued. However, there being 
many important decisions and opinions involving matters of law and precedent 
which are not presented in the review of court-martial records, it has been decided 
to publish a digest thereof as a " Bulletin" in the monthly Court-Martial Orders. 
These cases will be separated from the Court-Martial "Remarks" and are published 
in the Court-Martial Orders merely as a matter of convenience; they are not 
intended to have the full force and effect of regulations as do "Remarks" forming a 
part of Court-Martial Orders proper under article R-901 (3), Navy Regulations, 
1913. C. M. O. 6, 1915, 7. 

2. Original bulletin— In Court-Martial Order No. 6, 1915, 7. 

3. Regulations, not— Cases in bulletin have not the force of regulations. See Bulletin 

in Court Martial Orders, 1. 

BULLY. 

1. Hazer— A hazer is essentially a bully. C. M. O. 12, 1913, 2. 

BURDEN OF PROOF. 

1. Desertion. C. M. O. 30, 1910, 10. See also Desertion, 103, 104. 

2. Citizenship. See Citizenship, 6. 

3. Drunkenness. See Drunkenness, 11. 

4. Embezzlement— Authorities hold that accused must satisfactorily explain shortage. 

C. M. O. 39, 1913, 5. See also Embezzlement, 3, 24, 25. 

5. Same— When shortage is proved, paymaster is prima facie guilty and must show what 

has become of the missing funds. G.C.M. Rec. 27899. See also Embezzlement, 27. 

6. Fraudulent enlistment. See Fraudulent Enlistment, 12. 

7. Promotion— Burden of proving fitness is on the candidate. See Promotion. 19-21. 

8. Shifting. SeeC. M. O. 42, 1909, 4; 49, 1910,6: 30, 1910,10. 

9. Theft. C. M. O. 42, 1909, 4; 49, 1910, 6. See also Theft, 17. 

BURDEN OF ASCERTAINING TIME OF EXPIRATION OF LEAVE OR LIB- 
ERTY. See Leave of Absence, 3. 

BUREAU. 

1. Marine Corps— Not a bureau. See Marine Corps, 12. 

BUREAU CHIEFS. 

1. Civil War service. See Bureau Chiefs, 8, 10. 

2. Construction and Repair. See Bureau Chiefs, 9. 

3. Depositions. See Depositions, 4. 

4. Medicine and Surgery. See Bureau Chiefs, 9: Bureau of Medicine and Surgery. 

5. Navigation. See Bureau Chiefs, 8, 10 Bureau of Navigation. 

6. Ordnance. See Bureau Chiefs, 10. 



56 BUREAU CHIEFS. 

7 promotion examinations— Of chiefs of bureaus while serving as such— For enumera- 

tion of those cases of officers examined for promotion while serving as chiefs of bureaus. 

8 Rank and commissions for— Under appropriation act of June 24, 1910 (36 Stat. , 60.5 )— 

The Chief of the Bureau of Supplies and Accounts should be given a new commission 
as paymaster general with the rank of commodore from the date of his appointment 

^The Chief o° the^Burean of Navigation snould receive a new commission with the 
rank of rear admiral from June 24, 1910, upon the ground of his having had Civil W ar 

Se That'the advancement and commissioning of the Chief of the Bureau of Navigation 
with the rank of rear admiral would create a vacancy in the grade ol captain in such 
sense as to authorize the promotion of an officer to fill the vacancy . 

The commissioning of the Chief of the Bureau of Navigation as a rear admiral would 
operate to make him an additional number on the active list in the already existing 

^The Chief of th^Bu'reau of Navigation will continue to be an additional numbor so 
long as he remains on the active list. . 

The Chief of the Bureau of Navigation should be advanced to the upper nine in the- 
grade of rear admiral with the regular number next following him on the list of officers 
of that grade. [But see Additional numbees, 1.] . 

Tne Chief of the Bureau of Navigation is not required to be examined for his ad- 
vancement to the grade of rear admiral in accordance with the provisions of sections 
1493 and 1496 of the Revised Statutes. .„,«.,,«_■», , v s 

The advancement in numbers and precedence of the Chief of the Bureau of Navi- 
gation will be permanent. File 22724-16:1 J. A G Feb. 13 1911 See also File 
4649-02, July 17,1992; 22724-16:3; 22724-18, Dec. 4, 6, 1911, and Jan 3, 1912; 5038-19, 
Feb. 29, 1912; 28025-385:5, Oct. 30, 1915; 22724-33, J. A. G. , Aug. 22, 1916. 

9 Same-Section 1473 of the Revised Statutes is the only statute providing as to rank 

upon retirement for age or length of service in the cases of the Chiefs of the Bureaus 
of Medicine and Surgerv, Supplies and Accounts (formerly Provisions and Clothing), 
Steam Engineering, and Construction and Repairs. Other bureau chiefs are gov- 
erned bv tne provisions of sections 1443, 1444, and 1457 of the Revised Statutes and 
act of Mav 13, 1908 (35 Stat., 128). File 22724-16:1, J. A G Apr. 24, 1911. 

10 Same— The Chief of the Bureau of Navigation and the Chief of the Bureau of Ordnance 
' are not entitled (act of June 24, 1910, 36 Stat., 605) to be retired for age or length of 

service with rank of such bureau chief unless such officer nad Civil w ar service. File 

11 Same— The clause relating to chiefs of bureaus in the act of June 24 1910 (36 Stat., 605), 

was not meant to affect any officers subordinate to such chiefs of bureaus. ± He 

12 Same— Under the provisions of the clause in the act of June 24, 1910 (36 Stat., 605 607), 

it is neces^arv to determine in the case of each chief of bureau just what would be the 
rank and title of the particular officer if he were now retired for age or for length of 
service. File 22724-16:1, J. A. G., Apr. 24, 1911. . 

13 Same— When a chief of a bureau is given a commission as such with the rank of rear 

admiral under the act of June 24, 1910 (36 Stat., 005), such commission does not create 
a vacancv in the grade which said chief of bureau holds when made and commis- 
sioned as" chief of bureau. File 5038-18 and 19, J. AG Feb. 29, 1912 

14 Retired officers— As chiefs of bureaus. File 21, Nov. 25, 1902. See also File 21-5, Dec. 

11, 1907, Op. Sol.; 15315-5. 

15. Retirement of. See Retirement of officers, 14 

16 Status of —A chief of a bureau has a dual status: (1) He occupies a position of an officer 
of the Navy of the grade from which he is appointed as chief of bureau, or of the grade 
to which he may be promoted thereafter, and holds a commission as of such grade. 
(2) He also temporarily occupies a separate and distinct office as chief of bureau, 
and holds a separate commission as such for the term of four years. 15 J. A. (.»., 
290, Mav 31, 1911. 

17. Steam Engineerins. See Bureau Chiefs, 9. 

18. Supplies and Accounts. See Bureau Chiefs, 9; Bureau of Supplies and Ac- 

COUNTS. 

19 Titles— Brief history of controversy regarding titles. 13 J. A. G. 385, Nov. 29, 1904; 13 
J. A. G.,393. 



BYSTANDER. 57 

BUREAU OF MEDICINE AND SURGERY. See also Hospitals; Hospital Fund; 
Hospital Ships; Medical Attendance; Medical Officers of the Navy; Medi- 
cal Records; Medical Reserve Corps of the Navy. 

1. Chief of— Supplying enlisted men's records. See Medical Records, 3-6. . 

2. Health records. See Medical Records, 1. 

3. Hospitals. See Government Hospital for the Insane; Hospitals. 

4. Hospital ships. See Hospital Ships. 

5. Medical treatment— Of officers' families. See Families; Medical Attendance. 

6. Nurse Corps — "United States citizenship will be a reauired qualification for admis- 

sion to the Navy Nurse Corps " and one who is not a citizen of the United States " is 
ineligible for appointment at this time." File 26252-110, Sec. Navy, Jan. 6, 1917. 
See also Medical Officers of the Navy, 11. 

BUREAU OF NAVIGATION. 

1. Court-martial orders— Indorsements published in C. M. O. 41, 1915, 4; 43, 1915; 44, 

1915; 6, 1916, 2; 12, 1916, 2; 19, 1916, 2; 26, 1916, 4; 27, 1916, 5; 28, 1916; 31, 1916; 38, 
1916. 

2. Same— All court-martial orders, after printing, shall be distributed by. (R-602.) 

3. Courts of inquiry records— Referred to. See Bureau of Navigation, 7. 

4. General court-martial records— Referred to. See Bureau of Navigation, 7. 

5. Indorsement of — As evidence. See Indorsements, 2. 

6. Orders of— Not sufficient to make an officer a member or a judge advocate of a general 

court-martial. See Court, 37, 38, 40. 

7. Questions of discipline — Questions of naval discipline, rewards, and punishments 

shall be submitted by this bureau for the action of the Secretary of the Navy. The 
records of all general courts-martial and courts of inquiry involving the personnel 
of the Navy shall, before final action, be referred to this bureau for comment as to 
disciplinary features. (R-132.) 

8. Rank and commission for chief of. See Bureau Chiefs, 8, 10. 

BUREAU OF ORDNANCE. 

1. Rank and commission— For chief of. See Bureau Chiefs, 10. 

BUREAU OF STEAM ENGINEERING. 

1. Inspection officer— Tried by general court-martial for not properly informing bureau. 

C. M. O. 41, 1915. 

2. Rank and commission— For chief of bureau. See Bureau Chiefs, 9. 

BUREAU OF SUPPLIES AND ACCOUNTS. 

1. Court-martial order — Remarks published in. C. M. O. 17, 1915, 2. 

2. Rank and commission— For chief of. See Bureau Chiefs, 9. 

BURGLARY. 

1. Attempted burglary. C M. 0. 14, 1908, 3. 

2. Corpus delicti. See Corpus Delicti, 2. 

3. Drunkenness— There are crimes which can be consummated only where a peculiar and 

distinctive intent, or a conscious deliberation or premeditation, has concurred with 
the act, which could not well be possessed or entertained by an intoxicated person. 
Thus in cases of such offenses as larceny, robbery, or burglary, which require for 
their commission a certain specific intent, evidence of drunkenness is admissible as 
indicating whether the offender was capable of entertaining this intent, or whether 
the act was anything more than a mere battery, trespass, or mistake. C M. O. 
42, 1909, 10. See also C M. O. 8, 1911, 5; Drunkenness, 49; Intent, 2,5. 

4. Enlisted man— Charged with. C M. O. 13, 1916, 1; G. C. M. Rec. 29071. 

5. Same— Charged with "Burglarvin violation of the Twenty-second Article for the Gov- 

ernment of the Navv." C. M. O. 7, 1890. 

6. Specific intent— Required. C. M. O. 42, 1909, 10; 8, 1911, 5. See also Burglary, 3. 

7. Time— As essence of, material. File 26287-1125, J. A. G., March 19, 1912. 

BURIAL CERTIFICATE. Sec Autopsy, 1. 

BURIAL EXPENSES. See Death Gratuity, 21. 

BYSTANDER. 

1. Killed— When member of guard shot at escaping prisoner. C. M. O. 49, 1915, 12. See 
also Manslaughter, 9. 



58 CARELESSNESS IN OBEYING ORDERS. 

CADETS, NAVAL. See Naval Cadets. 

CALLS FOR EVIDENCE BY COURT OF CLAIMS. See Court of Claim. 

CAMPAIGNS. 

1. China. See China Campaign Badges. 

2. Philippine. See Philippine Campaign Badges. 

CAMPAIGN BADGES. 

1. China Campaign Badge. See China Campaign Badges. 

2. New York State Campaign Badge. File 19245-54, J. A. G., March 2, 1916. 

3. Philippine Campaign Badge. See Philippine Campaign Badges. 

CAPITATION TAXES. See Poll Taxes. 

CAPTAIN. See Commanding Officers. 

CAPTAIN OF FORECASTLE, U. S. NAVY. 
1. General court-martial — Tried by. C. M. O. 20, 1889. 

CAPTAIN OF THE AFTERGUARD. 

1. General court-martial— Tried by. C. M. O. 23, 1879. 

CAPTAIN OF THE HOLD, U. S. NAVY. 
1. General court-martial — Tried by. C. M. 0. 11, 1879. 

"CAPTAIN OF TOP." 

1. General court-martial— Tried by. C. M. O. 58, 1880; 15, 1887; 35, 1889; 37, 1892. 

CARBOLIC ACID. 

1. Suicide— Enlisted man committed suicide by drinking. See Line of Duty and Mis- 
conduct Construed, 75. 

CARBON COPIES. 

1. Evidence, as— Letterpress copies are at best secondary evidence. Carbon copies signed 
in carbon by the same act as the signing of the original or signed separately in the 
same manner as the original, are counterparts or duplicate originals. 

Papers prepared in duplicate or multiplicate, requiring no signature to complete 
them are all original duplicates. 

For the purpose of this office, having in mind the character of the papers prepared 
herein, carbon copies would have to be signed either in carbon by the same act as the 
signing of the original, or signed separately in the same manner as the original, to 
become primary evidence. Unless so signed they would simply be secondary evi- 
dence, to be used in the same manner as letterpress copies, and as between the two, 
as secondary evidence, letterpress copies would be more easily identified and would 
present less chance of errors by reason of the fact that it frequently happens that 
changes made in the original are overlooked and not made in the carbon copies. 

The press copy is secondary evidence, and can be used in evidence only after proof 
of the loss or destruction of the original, or notice to the opposite party to produce it 
when it is shown to have been in his possession. 

Under the " Best Evidence Rule " the highest degree of proof of which the case from 
its nature is susceptible must, if accessible, be produced. 

As between a press copy and a carbon copy the press copy is the better in cases where 
resort must be to secondary evidence. File 28067-27:15, J. A. G., Nov. 17, 1911. 

CARELESS AND NEGLIGENT IN THE PERFORMANCE OF DUTY. 

1. Officers— Charged with. G. C. M. Rec. 7220; 7221. 

CARELESS IN THE PERFORMANCE OF DUTY. C. M. O. 11, 1903. 

CARELESSNESS. See also Misconduct, 3. 

1. Court. See Court, 10; Criticism of Courts-Martial, 5, 25. 

2. Death— Carelessness causing death. C. M. O. 33, 1914, 11; 49, 1915, 12. See also Man- 

slaughter, 12. 

3. Intent— Replacing criminal intent. See Intent, 12. 

4. Judge advocate. See Certified Copies, 1; Court, 10; Judge Advocate, 13. 

CARELESSNESS IN OBEYING ORDERS. 

1. Gunner— Charged with. CM. O. 65, 1903. 

2. What constitutes— Carelessness in obeying orders. File 26251-668:a. 



CERTIFICATES. 59 

CARPENTERS. 

1. Cnief carpenters. See Chief Carpenters. 

2. General court-martial— Tried by. C. M. O. 32, 1914. 

CARRYING CONCEALED WEAPONS. 

1. Midshipmen— Tried by general court-martial— "Carrying concealed weapons is an 
offense of which civil courts take cognizance, indicating, moreover, a readiness to 
resort to murder on fancied or real provocation. The procedure of the accused in 
deliberately arming himself with a concealed revolver before he went into a disrepu- 
table quarter of * * *, his very presence therein amidst enlisted men, clearly 
indicates deficiency of moral sentiment, self-restraint, and gentlemanlike qualities." 
The charge in this case was conduct unbecoming an officer and a gentleman. 
C. M. O. 7, 1912; 8, 1912, 3. 

CASHIERED. 

1. Defined— Dismissal and cashiering were formerly regarded as quite distinct in military 

law; the latter involving in addition to a dishonorable separation from the service a 
disability to hold military office. There is now no practical difference in the use of the 
terms. Naval courts-martial should adjudge "dismissal." 

In G. O. 52, April 15, 1865, where an officer was cashiered the department in the 
same order referred to him as having been "dismissed." 

2. Officer— Sentenced to be cashiered. G. O. 44, Dec. 7, 1864; 52, Apr. 15, 1865; C. M. O. 

125, 1900, 2. 

3. Same — Sentenced "to be cashiered, and forever disqualified from holding any office or 

appointment under the Government of the United States. " Department held that 
"a court-martial can not disqualify any person in this manner," and remitted that 
part of the sentence. G. O. 44, December 7, 1864. 

4. Same— Members of general courts-martial may be cashiered. See Court, 170; Members 

of Courts-Martial, 5. 

" CATCH- ALL" CLAUSE. 

1. A.G.N. 22— "All offenses committed by persons belonging to the Navy which are not 
specified in the foregoing articles shall be punished as a court-martial may direct." 
C. M. O. 4, 1913, 45; 49, 1915, 17, 18; File 26251-9280; 26251-12159, p. 18. 

CATERER OF THE MESS. C. M. O. 98, 1894, 2. 

CAUSING TO BE PREPARED A FALSE AND FRAUDULENT VOUCHER IN 
VIOLATION OF ARTICLE FOURTEEN, A. G. N. 

1. Officer— Charged with. C. M. O. 129, 1898. 

CAUTION. See Warning. 

CELLS. 

1. Brig. See Brig of Receiving Ship. 

2. Storage battery. C. M. O. 41, 1915. 

CENSURE. See Adequate Sentences; Criticism of Courts-martial; Certified Cop- 
ies, 2; Court, 90, 93, 113, 148; Judge Advocate, 14, 59, 60; Secretary of the Navy, 
63. 

CEREMONIAL OCCASIONS. 

1. Officer's monument— The President as Commander in Chief has authority to order 
a naval detachment to Raleigh, N. C, to participate in ceremonies attending the 
unveiling of a monument to a deceased naval officer. File 3679-2. See also Bands, 1. 

CERTIFICATES. 

1. Baptism. C. M. O. 217, 1902, 3. See also Minors, 6. 

2. Birth, certificates. See Fraudulent Enlistment, 59; Minors, 6. 

3. Civil officer— It is improper for a judge advocate to read to the court without offering 

in evidence a certificate from the civil officer to the effect that the accused surrendered 
himself and when brought on board his ship stated that he considered himself a 
straggler, or to append a certified copy to the record. C. M. O. 37, 1909, S. 

4. Same — It is improper for a judge advocate to introduce as evidence a certificate from a 

civil officer setting forth the fact that the accused did not surrender himself to the 
police authorities and that he was a deserter from the naval service. The best evi- 
dence of the facts set forth in the certificate should have been obtained by placing 
the writer thereof on the stand to testify under oath and subject to cross-examination. 
C. M. (). 47, 1910, 1. 



60 CERTIFICATES. 

5. Same— It is improper for a judge advocate to refer to a certificate of a civil officer (refer- 
ring to apprehension and delivery of accused) in his remarks, and append certified 
copy to record when said document had not been introduced in evidence. The depart- 
ment stated: " There appears to be no authority for the court's action in permitting 
the judge advocate to arbitrarily append this document to the record, since, under the 
circumstances, it has no place therein. Had it been attempted to introduce this 
statement in evidence, it would have been subject to objection as hearsay or secondary 
evidence." C. M. O. 1, 1911, 4. 

6. Continuous service certificate. See Continuous Service Certificate. 

7. Death. See Medical Records, 5. 

8. Deposit— Certificate of deposit. See C. M. O. 4, 1913 5, 6, 7. 

9. Discharge— "Certificate of discharge." See Civil War Service, 1. 

10. False certificate— Specification alleging the making of false certificate upon a quarterly 

return of clothing, etc. C. M. O. 52, 1910, 1. 

11. Medical officer— On court-martial records. See Confinement, 5. 

12. Naturalization. See Citizenship, 23, 26. 

13. Seaman gunner. See Seaman Gunners, 4. 

14. Witness— Certificate of claim for civilian witness fee. See Address, 3. 

CERTEFD3D COPIES. 

1. Document — When an officer certifies over his signature a document to he, a, true copy 

of some other writing, it is presumed to be an exact copy thereof, and not a summary 
of the substance of the remarks contained therein. 

The department has frequently noted, in reviewing records of proceedings of general 
courts-martial that copies of precepts and other documents, purporting to be true 
copies of the original, and signed as such by the judge advocate of the court, are not exact 
copies, and often differ materially from the originals. This indicates carelessness on 
the part of judge advocates, in certifying such documents without first satisfying 
themselves that they are exact copies of the originals. C. M. O. 17, 1910, 3. 

2. Same— The department noted that an exhibit in a general court-martial case, purporting 

to be a true copy of an original writing, was in fact not a true and exact copy of such 
writing, although so certified to by the judge advocate. The department considered 
such manifest carelessness as deserving of censure. C. M. O. 23, 1910, 3. 

A copy of a document is never good evidence where legally possible to produce 
original, etc. See Carbon Copies; Evidence, Documentary, 10, 58. 

3. Same— Certified copy of extract read as evidence should be appended to record. 

C. M. O. 16, 1908; 41, 1914, 4, 5. 

4. Enlistment record.— Certified copy of extract read in desertion case. See Service 

Records, 23. 

5. Indictment— Certified copy of indictment. See Civil Authorities, 16. 

6. Precept^Certified copy of precept, not original., should be appended to record in gen- 

eral court-martial cases. See Precepts, 6,23. 

7. Record of proceedings— Notation should be made in record whether original or certi- 

fied copy of document read is appended to record. C. M. O. 16, 1908; 41, 1914, 4-5. 

8. Reports on fitness— If introduced in evidence, certified copies need not be appended to 

record. See Reports on Fitness, 5. 

CHALLENGES. 

1 . Courts-martial— Until sworn can only hear and determine challenges. See Court, 120. 

Has no authority to excuse any of its members from sitting in a case except upon 
challenge duly made and sustained by the court. Therefore, a court-martial commits 
an error if it excuses a member from sitting, although he requests it and states he inves- 
tigated the case and believes the accused guilty. C. M. O. 127, 1900, 1. But see File 
26504-138, Sec. Navv, May 13, 1912, with reference to self-challenge, which modifies 
this. 

2. Courts of inquiry— Challenge of members. See Courts of Inquiry, 5. 

3. Deck Court— If accused objects to being tried by deck court, he shall be tried by sum- 

mary court-martial. (R-506.) See Challenges, 20; Deck Courts, 9,50. 

4. Insisting upon— The challenger can not insist upon his challenge in opposition to the 

decision of the court. (R-769.) 

5. Judge advocates— The judge advocate can not be challenged on any grounds. (R- 

709.) 

6. Same— Will properly assist the accused in presenting in due form such challenges as 

the latter may desire to urge, when the accused is not represented by counsel. C. M. O. 
6, 1909, 3. 



CHALLENGES. 61 

Duty to challenge a member of the court for privately consulting and receiving 
advice from a medical expert in regard to evidence in the case, whether the irregular- 
ity may have tended to the injury of the prosecution or the defense. C . M . . 128, 1905. 

7. Marine examining board— Challenge of members by candidate. See Promotion, 

25-27. 

8. Material witness— G. C. M. Rec. 13370, p. 2. See also Challenges, 16. 

8. Member by judge advocate— At close of case for the prosecution, the judge advocate 
challenged a member on three grounds: (1) That he had privately consulted and re- 
ceived advice from a medical expert in regard to the evidence in the case ; (2) that he had 
so argued with witnesses as to show he was greatly interested in a certain theory of the 
case; (3) that he had taken a decided stand either for the prosecution or defense, without 
saying which. The court did not sustain the challenge. The department held that 
the court erred in not sustaining the challenge on the first ground. That so far as 
practicable, nothing affecting the case should be allowed to reach the mind of one mem- 
ber unless it reached all, and the person furnishing it speak under oath, subject to cross- 
examination. Inasmuch, however, as counsel for the accused objected with emphasis 
to challenge and argued against its being sustained, the accused must be held to have 
no right to complain of the court's ruling. CM. 0. 128, 1905. See also Counsel, 5. 

10. Member withdrawing— It is customary, though not necessary, that a member 

objected to should withdraw, after offering such explanation as he may believe neces- 
sary, and the court shall then be cleared and proceed to deliberate and decide upon the 
the validity of the objection. (R-769.) 

11. Opinion formed. See Challenges, 16, 17. 

12. Possibility of— No officer should be named in the precept as a member against whom 

either the judges advocate or the accused can reasonably object when called upon to 
exercise the privilege of challenge. (R-702.) See Court, 34. 

13. Prejudice— Members were challenged for prejudice. Each member was thereupon 

sworn upon his voir dire, and duly interrogated, after which the accused withdrew 
his challenge. 13 J. A. G., 324, June 11, 1904, p. 2. See also Challenges, 9; Mem- 
bers of Courts-Martial, 39. 

14. Quorum — Court reduced below. See Challenges, 22. 

15. Bank, title, or relative position of members — An error in statement of the rank, 

title, or relative position of any member in the precept will not affect the validity of 
the order. Therefore, court erred when it sustained an objection entered by the 
judge advocate to a member on the ground that his title in the precept read, "second 
lieutenant," instead of "first lieutenant," his proper title. C. M. O. 100, 1893, 1-2. 

16. Reasonable grounds— The accused objected to a member of court, a surgeon, on 

ground that he might be a witness for the prosecution. Court overruled challenge. 
The department held that this challenge should have been sustained, particularly 
when it subsequently appeared during the trial that not only might the challenged 
member have been a material witness, but also that he had expressed very positively 
in writing an opinion as to the guilt of the accused on at least one of the charges, which 
opinion was later introduced improperly in evidence. C. M. O. 47, 1910, 6-7. 

17. Same— A member of the general court-martial admitted, when challenged, that he 

had stated he hoped the accused would get a general court-martial. The court did 
not sustain the challenge and the department disapproved the proceedings, findings, 
and sentence. C. M. O. 34, 1897, 2. 

18. Record of proceedings— The objection, the cause assigned, the statement, if any, of 

the challenged member, and the decision of the court shall be regularly and specifically 
entered on the proceedings. (R-769.) 

The record should show affirmatively that accused was given an opportunity to 
challenge. C. M. O. 37, 1909, 8. 

19. Right of— The accused and the judge advocate have the mutual right of challenge. 

It is the duty of the judge advocate to ask the accused if he objects to any member 
of the court appointed to try him, and a minute of this inquiry and the answer 
thereto is invariably to be entered upon the record. (R-769.) 

20. Summary courts-martial— After the precept and orders altering the same have 

been read, the accused shall be asked if he objects to any member of the court. The 
recorder may not be challenged on any ground. It is essential for the record to 
show that the accused was afforded opportunity to challenge. The recorder may also 
challenge members. 

If a challenge is made and the court decides not to sustain it, the case shall pro- 
ceed. If the challenge is sustained, the caso shall be suspended and the recorder 
shall, as soon as possible, forward the record to the convening authority. If the 
latter approves the action of the court, he may order a now member in place of the 



62 CHALLENGES. 

one challenged, or withdraw the specification from the court; if he disapproves the 
court's action, he shall return the record to the court with his action thereon and 
the case shall proceed. When a new member is added to the court, the order ap- 
pointing him shall be read aloud and the accused shall be afforded an opportunity 
to challenge such member (47, A. G. N.; R-611.) 

21. Time lor exercising right of challenge— As a general rule, whatever objection 

either party may make shall be decided upon before the court is sworn; but at any 
stage of the proceedings prior to the findings challenge may be made, by either the 
judge advocate or the accused, for cause not previously known. (R-769.) 

22. Valid— Should the objection be pronounced valid, and the membership of the court 

be thereby reduced below the legal number, the court shall be adjourned and a 
report made to the convening authority. (R-769.) Sec Court, 141; Quorum, 2. 

23. Same— Courts-martial should be liberal in passing upon challenges, but should not 

entertain an objection which is not specific, or allow one upon its mere assertion 
by the accused without proof, and in the absence of any admission on the part of 
the member. A positive declaration by the challenged member to the effect that he 
has no prejudice or interest in the case, will, in general, in the absence of material 
evidence in support of the objection, justify the court in overruling it. 

Harwood on Courts-Martial (p. 73), citing De Hart, quotes as follows: ''Sir C. J. 
Napier observes that 'when it is practicable so to do, all challenges should be admit- 
ted.' It is not only right to be as mild as possible toward a prisoner, but it is right 
also to let the public and the prisoner see that such is the case. A culprit should never 
be made to appear in the light of a martyr; for when this takes place, much of the 
advantage of punishment is lost, and it is hard to oblige him so to do, unless the good 
of the service demands it." C. M. O. 34, 1897, 2. 

CHALLENGE TO DUELS. See Duels. 

CHANGES OF NAMES. See Name, Change of. 

CHAPLAINS. 

1. Army— For memorandum comparing naval chaplains with Army chaplains and other 

corps of the Navy. See File 398-03. 

2. Courts-martial— May serve as members of courts-martial. Letter of September 24 

1898. 

3. General courts -martial— Tried by. C. M. 0. 108, 189S; 74,1907. See also Additional 

Charges and Specifications, 10. 

4. Judge advocate— Chaplain may act as judge advocate. Letter of September 24, 1898 

See also File 7214-98. 

5. Number, rank, and pay of. See File 3616-3, September 17, 1907. 

CHARACTER. 

1. Accused's character. See Evidence, 12-22. 

2. Admissibility of evidence as to. See Evidence 12-22. 

3. Clemency— Recommended because of previous excellent character of accused. See 

Clemency, 8. 

4. Evidence of— By prosecution, admissible only when, etc. See Evidence, 16. 

5. Impeaching— Character of witnesses. See Impeachment. 

6. Witnesses— Privilege of witnesses to decline to reply to questions the answers to which 

would degrade or disgrace them. C M. O. 29, 1914, 11. See also Self-Incrimen*.- 
tion, 11-12. 

7. Same — As to character of accused. C M. 0. 1, 1914, 5, 7. SeeaUo Evidence, 12-22. 

8. Same — Duty of judge advocate to cross-examine. C. M. O. 39, 1915. 

CHARGES AND SPECIFICATIONS. 

1. Abbreviation— Of names. See Charges and Specifications, 60. 

2. Absence, unauthorized. See Absence, 10-13; Absent from Station and Duty 

After Leave had Expired; Absent from Station and Duty Without Leave- 
Desertion. 

3. Accumulative— Offenses shall not be allowed to accumulate in order that sufficient 

matter may thus be collectively obtained for a trial, without giving due notice to 
the offender. (R-1411.) C. M. 0. 38, 1894, 3. See also Accumulation of Offenses. 

4. Accused— Shall, as soon as practicable after it has been decided to bring him to trial' 

be furnished with a copy of the charges and specifications preferred against him' 
(See A. G. N. 43.) C. M. 0. 10, 1915, 6. See also Arrest, 39. 

5. Same— "In all cases, whether general or summary, the record must state that the 

accused was furnished with a copy of the charges and specifications at least one day 



CHARGES AND SPECIFICATIONS. 63 

before the trial." (G. O. 114, Mar. 22, 1869.) The department now holds that the 
accused may be tried at any time after he states in open court that he is ready for 
trial. (R-775.) 

6. Additional charges and specifications. See Additional Charges and Specifi- 

cations. 

7. Admissions in open court— By accused of certain parts of the specifications. See 

Admissions, 1. 

8. Alterations in— How made. See Charges and Specifications, 33, 34. 

9. Amendments in— How made. See Charges and Specifications, 33, 34. 

10. Arraignment. See Arraignment. 

11. Borrowing money. See Borrowing Money, 1; Lending Money. 

12. Breaking arrest. See Breaking Arrest. 

13. Changes or alterations in — Authority for. See Charges and Specifications, 33,34. 

14. Conduct unbecoming an officer and a gentleman.— See Conduct Unbecoming 

an Officer and a Gentleman. 

15. Convening authorities— Should follow prescribed forms— In reviewing records of 

general courts-martial during the past year the department has noted that convening 
authorities have not conformed to the phraseology for charges as outlined in the 
Forms of Procedure, 1910. Wherever possible the Forms of Procedure should be fol- 
lowed. Convening authorities should never lose sight of the fact at any time as ex- 
pressly stated in the department's order promulgating the Forms of Procedure, 1910, 
that "deviation therefrom may be fatally irregular and erroneous." (Forms of Pro- 
cedure, 1910, p. 3.) C. M. O. 49, 1915, 9. See also C. M. O. 35, 1915, 6-7; Charges 
and Specifications, 43, 44, 47, 48. 

16. Same — Time and place of signing by convening authority should be stated. C. M. O. 

159, 1897, 2; 160, 1897, 2. 

17. Copy of— To be furnished accused. See Charges and Specifications, 4, 5, 18; Ar- 

rest, 39. 

18. Same — Received by accused 10 days before his trial — The accused is solely responsible 

for informing his natural or legal guardians or relatives of the fact that he is to be tried 
by general court-martial. The department has held that an accused had ample time to 
send such information when he was delivered a copy of the charges and specifications 
10 days before he was brought to trial. File 26251-6020:11, Sec. Navy, July 7, 1913; 
C. M. O. 27, 1915, 10. See also Charges and Specifications, 4, 5. 

19. Corrections to. See Charges and Specifications, 33, 34. 

20. Date — Accused received copy of charges and specifications should be entered on record. 

C. M. O. 17, 1910, 15. 

21. Same— Of identification of accused while serving in Army should be alleged in the 

specification under achargeof "desertion." CM. 0.33,1912, 2. Seealso Army, 9; De- 
sertion, 17. 

22. Same— Should be written in specifications. CM. O. 28, 1910, 5. 

23. Same— Alleging of dates in specifications. See Findings, 18, 27, 32, 33, 35. 

24. Debts. See Debts, 12, 13, 21, 22, 24, 27. 

25. Deceit. See Deceit. 

26. Deck court. See Deck Courts. 

27. Defects in— Waived by plea of "guilty." See Absence from Station and Duty 

Without Leave, 29. 

28. Desertion. See Desertion. 

29. Drawn, how. See Charges and Specifications, 15, 16, 38, 39, 40, 43, 47, 48, 49, 52, 53, 

60, 61-68, 70, 74, 78, 91, 92, 93, 99, 102, 103, 105, 106. 

30. Drunkenness on duty. See Drunkenness on Duty, 4. 

31. Duplication— Of charges should be avoided. C M. O. 49, 1915, 18. See Charges and 

Specifications, 32, 61-68. 

32. Duplicity. C M. 0. 150, 1897; 160, 1897; 35, 1915, 6-7; 49, 1915, 18. See also Charges 

and Specifications, 31, 61-68. 

33. Errors in— After a charge and specification has been signed by the proper convening: 

authority and ordered to be investigated, it is not competent for any person to make 
alteration therein without first having obtained the consent of such authority , except 
that the judge advocate may, with the approval of the court, correct manifest clerical 
errors. (Navy Regulations, 1913, R-715 (1-2); R-774 (2); Forms of Procedure, 
1910, p. 21.) 

If a court-martial considers other alterations necessary in a charge or specification 
laid before it, the same must be submitted for the approval of the anthorit v by whom 
the original charge was sanctioned, previous to the arraignment of the accused. 
(R-715 (2).) (See G. C. M. Rec. 16098, Exhibits "G " and "II"; File 26251-12309.) 

50756°— 17 5 



64 CHARGES AND SPECIFICATIONS. 

Errors in charges and specifications are classified in two groups — clerical and 
technical. Clerical errors are those of spelling, punctuation, etc., correction of which 
does not alter facts: and those may, with the approval of the court, be corrected by 
the judge advocate. (Forms of Procedure, 1910, p. 21. ) 

Technical errors are, in general, those which the charges and specifications disclose, 
and which would be sufficient to sustain a demurrer or special plea; such as a charge 
not supported by the specification, uncertainty as to the time or place of the offense, 
lack of jurisdiction of the court, etc. (Forms of Procedure, 1910, p. 21.) 

All corrections to charges and specifications should be made on accused's copy. 

It is not within the discretion of either the judge advocate, court, or any other 
party to correct technical errors in the charges and specifications without the consent 
of the convening authority. If the court is in doubt as to whether an error in the 
charges and specifications is clerical or technical it should treat it as a technical error 
and thus avoid any possibility of having the case disapproved on a technicality of 
this nature. C. M. O. 42, 1914, 3. See also C. M. O. 27, 1898, 1; 16, 1911, 4. 

34. Same— Procedure to correct— If the court decides that a charge and specification con- 

tains a technical error it should suspend proceedings and follow the procedure laid 
down in Forms of Procedure, 1910, p. 21. If the court follows this procedure in every 
case where it is not absolutely certain that the error is clerical, the convening authority 
will then have an opportunity to amend the charge and specification. (C. M. O. 16, 
1911, p. 4.) C. M. O. 42, 1914, 3. See also Charges and Specifications, 33. 

35. Same— Court errs if it pronounces faulty charges and specifications in "due form and 

technically correct." C. M. O. 16, 1911, 4; 35, 1915, 6-7. 

36. Same— Faulty specifications. See Charges and Specifications, C2. 

37. Same — Waived by plea of "guilty." See Absence from Station and Duty Without 

Leave, 29. 

38. Essentials— Of offense must be set forth in a deck-court specification. See Deck 

Courts, 59. 

39. Same— In reviewing the case the department noted that the three specifications under 

a charge did not designate the party accused nor set forth the time of the alleged 
offenses, the ship on which the alleged offenses took place, nor the attending circum- 
stances, as required by the provisions of the Navy Regulations, and as they contain no 
allegation of any offense committed by the accused, the findings thereon and upon the 
charge were disapproved. C. M. O. 3, 1907, 1. See aUo File 26287-1041. 

40. Extraneous matter— In drawing up the charges and specifications, all extraneous 

matter is to be carefully avoided, and nothing shall be alleged but that which is cul- 
pable and which makes a prima facie case which the prosecution may reasonably 
expect to substantiate before a court-martial. C. M. O. 4, 1916, 3. See also Charges 
and Specifications, 58; 23 J. A. G., 376. 

41. "Fatally defective." See File 27217-1611. See also Fraud, 5. 

42. Findings— When the accused pleads "guilty," the proper finding for the specification 

is "proved by plea," and for the charge "guilty." See Findings, 12. 

43. Form of— Accused may be tried at the same time for more than one offense, but each 

offense must be separately charged, and each charge must be followed by a separate 
specification, so that the party accused may be able to plead separately to each charge 
and specification. G. 0. 114, March 22, 1869. See also Charges and Specifications, 
15, 39, 44, 45. 

44. Same — Convening authorities should follow prescribed forms. See Charges and 

Specifications, 15, 39, 43, 45. 

45. Same— Summary court-martial— The specification shall be framed in accordance with 

the provisions of R-712 and R-713 (general courts-martial charges and specifications), 
a separate specification shall be used for each distinct offense, and two or more such 
specifications may be joined for a single trial. C. M. O. 16, 1916, 6-7. 

46. " Guilty," plea of— Waives defects in specifications. See Absence from Station 

and Duty Without Leave, 29. 

47. Higher criminality— In all cases in which the law attaches higher criminality to acts 

committed under particular circumstances, the act must, to bring the person within 
the higher degree of punishment, be charged to have been committed under those cir- 
cumstances, which must be stated with certainty and precision. For instance, by 
sections 6 and 7, article 4, Articles for the Government of the Navy (R-4), the penalty 
of death shall, in time of war, be inflicted for desertion, betrayal of trust, or enticing 
others to commit these crimes; in a charge, therefore, under one of these sections, it 
must be laid that the offense was committed in time of war. C. M. O. 8, 1913, 7. 

48. Highest crime— It is not necessary to charge an accused with the highest crime which 

the facts known at the time of drawing up the charges and specifications seem to indi- 






CHARGES AND SPECIFICATIONS. 65 

cate; this is within the discretion of the convening authority or the Secretary of the 
Navy; and the fact that an accused may be guilty of murder, for example, does not 
prevent him from being charged with manslaughter. File 148-04, J. A. G., Jan. 7, 
1904. See also Murder, 11, 16, 22, 24, 25. 

49. Immaterial allegations — An offense is charged by the statement of the material facts 

which constitute it, and not by the statement of a mere conclusion of law. Neverthe- 
less, particularity of description in charges and specifications is to be preferred and is 
sustained by practice. {See 7 Op. Atty. Gen., 601, 605; 28 Op. Atty. Gen. 292.) 
C. M. O. 8, 1913, 6-7; 4, 1914, 1, 7. 

If the charge and specification taken together amount to a statement of an offense 
cognizable under the Articles for the Government of the Navy, either under a specific 
or the general article, it will proDerly be held sufficient as a legal basis for trial and 
sentence. File 27217-1611. 

50. " In violation of regulation" — Is equivalent to "without authority." C. M. O. 21, 

1910, 6. 

51. Indefinite— A specification of a charge alleging that the accused did "use abusive and 

profane language toward a person unknown" is vague and indefinite, does not prop- 
erly inform the accused of the specific offense with which he is charged and against 
which he must defend himself, and is not in accordance with the department's instruc- 
tions, which require the objectionable language used should be alleged. C. M. O. 7, 

1911, 12. See also C. M. O. 78, 1905, 1. 

52. Intent— In cases where the law has adopted certain expressions to show the intent 

with which an offense is committed, the intent shall be expressed by the technical 
word prescribed, as "willfully," "knowingly," "corruptly," "maliciously," "inten- 
tionall y , " " wrongfully , " " carelessly . " For example , a charge made against an officer 
for making or for signing a false muster must be laid to have been done "knowingly." 
(R-712.) See Joinder, Trial in, 19. 

53. Irregular — Convening authority and members of court responsible — The accused 

(enlisted man) was tried by general court-martial by order of the commander in chief, 
United States Pacific Fleet, and found guilty of the following charges: "Absence 
without leave and out of uniform ashore, " and " Resisting arrest and assaulting a chief 
petty officer. " The accused was represented by civilian counsel and made no objec- 
tion to the charges and specifications. The court sentenced the accused, and the 
proceedings, findings, and sentence were approved without comment by the com- 
mander in chief. 

A reference to the Navy Regulations, 1913, Forms of Procedure, 1910, and court- 
martial orders will show that both of the above charges are extremely irregular, in that 
each charge contains more than one offense "of a perfectly distinct nature" (Navy 
Regulations, 1913, R-712 (2)) and is not phrased in the form prescribed. {See Navy 
Regulations, 1913, R-900, Limitation of Punishment; Forms of Procedure, 1910, pp. 
89-131, Specimen Charges and Specifications; pp. 313-319, Limitation of Punishment; 
see also tabulations in monthly court-martial orders.) 

It is obvious that the court erred when it "found the charges and specifications in 
due form and technically correct." (See Forms of Procedure, 1910, p. 21. See also 
G. C. M. Rec. Nos. 31019: 31020; File 26262-2366; 26262-2367.) C. M. O. 35, 1915, 6-7. 

54. Joinder. See Joinder, Trial in. 

55. Judge Advocate— May correct clerical errors, etc. See Charges and Specifications, 

56. Language— The objectionable language used by the accused must be set forth in the 

specifications alleging its use. See Charges and Specifications, 51. 

57. Letter of transmittal— The letter to the judge advocate of the court transmitting 

the charges and specifications on which a person is to be tried, or a properly authen- 
ticated copy of the same, must in every case be filed with the charges as a part of the 
record of the court. (R-716.) See Charges and Specifications, 59; Letters, 
27-30. 

58. Manslaughter— The department is reluctant to prepare a charge of "Manslaughter" 

or any other charge which there is not a reasonable expectation of proving, and such 
action, if taken, would be contrary to R-712 (1). File 26250-802:7, Sec. Navy, Aug. 5, 
1916. See also Charges and Specifications, 40. 

59. Marking of— The only requirement in the " Forms of Procedure, 1910, " as to marking 

charges and specifications and letters of transmittal, is that documents relating to 
the organization of the court shall be marked with capital letters, and instruments of 
evidence with numbers. While the letter of transmittal and the charge and specifi- 
cation are not, perhaps, strictly within either of the above-mentioned classes. w t 



66 CHARGES AND SPECIFICATIONS. 

they more nearly resemble documents relating to the organization of the court than 
otherwise; certainly they are not instruments of evidence. The letter of transmittal 
is the document that gives the court jurisdiction in that particular case over the person 
named therein, and therefore it is considered proper that such papers should be 
marked in the same manner as are documents relating to the organization of the court. 
C. M. O. 8, 1911, 6. 

60. Middle names— Christian names, other than the first, may be indicated by initial 

letters in specifications. C. M. O. 36, 1914, 6, 7; 4, 1916, 5; 14, 1916; File 26287-2104, Sec. 
Naw, July 22, 1914. Seealso C. M. 0. 150, 1897, 3; 1, 1914, 4; 5, 1914, 7; 40, 1914; G. C. 
M. Rec. 29584. 

61. Multiplicity or plurality— For same offense should be avoided— The law permits as 

many charges to be preferred as are necessary to provide for every possible contin- 
gency in the evidence. Where the offense falls apparently eqirally within the scope 
of two or more articles of the Articles for the Government of the Navy, or where the 
legal character of the offense can not be precisely known or defined until developed by 
the proof, it is quite proper in important cases to specify the offense under two or more 
charges. (C. M. 0. 19, 1911, 3-4.) There is no rule of law which prohibits the formu- 
lation of the same charge under more than one article. (CM. O. 4,1913,46.) 

The department's instructions merely mean that as a matter of policy the rule 
which permits such duplication of charges is not to be availed of when the offense falls 
quite clearly within the definition of a specific article, where there are no aggravating 
circumstances distinguishing it from the ordinary case contemplated by such article, 
and when there is no necessity to resort to multiplicity or plurality of charges. C. ftl. O. 
42, 1914, 7; 49, 1915, 18. 

62. Same— Department does not approve of trying an accused on two or more charges 

where the identical facts are made the basis of both— Department's policy is opposed 
to duplicating charges based on identical facts, where there are no aggravating cir- 
cumstances set forth under one charge which distinguishes it from the other. Where 
an objection is made to charges and specifications on this ground, if the court finds 
that the charges and specifications have apparently violated the department's policy, 
the case should be referred without delay to the convening authority in the manner 
prescribed by R-774 (2). CM. O. 5, 1914, 7; 42, 1914, 7; 49,1915,18. Seealso File 
26262-2338; G. C M. Rec. 30929. 

An accused was tried by general court-martial by order of the Commander in Chief 
U. S. Asiatic Fleet, upon charges among which was one oi " drunkenness." Under this 
charge there were three specifications, the first one alleging that the accused was under 
the influence of intoxicating liquor at or about 5.20 p. m. February 15, 1916; the second 
specification alleging that he was under such influenc at 5.45 p. m. on the same date; 
and the third alleging that he was under such influence at about 6 p. m. on the same 
date. 

Since it seems impossible that a man could become three times intoxicated and 
twice sober during so short a period as 40 minutes, it would appear that the facts 
alleged in the three specifications all relate to the original state of intoxication con- 
tinuing during this 40-minute period, and that there had been but one act of becom- 
ing intoxicated and but one resulting state of intoxication. The mere fact that the 
location of the accused may have changed while intoxicated does not in itself consti- 
tute a distinct offense. Also, when one has become intoxicated, his continuance in 
this state until sufficient time has elapsed to permit of his becoming sobered, is to 
be presumed, and such a continuance forms a necessary part of each single offense of 
''drunkenness" and should not be separately alleged. To hold otherwise would be, 
in effect, to allow a different specification for every second a man's intoxication might 
continue. G. C M. Rec. 32124; C M. O. 17, 1916, 9. 

63. Same— An accused should not be charged with both "Absence from station and duty 

without leave" and "Conduct to the prejudice of good order and discipline" where 
he is guilty of only simple absence without leave. C M. O. 5, 1914, 7; 25, 1914, 5. 
Seealso Absence from Station and Duty Without Leave, 12; Charges and Speci- 
fications, 64-68. 

64. Same— In a case where an accused was charged with both "Absence from station and 

duty without leave " and " Conduct to the prejudice of good order and discipline" for 
the same period of unauthorized absence, and no aggravating circumstances were 
present, the department disapproved the finding on the second charge. C M. O. 42, 
1909, 9, 11. See also C. M. O. 51, 1910, 2. 

65. Same— Accused should not be charged with both "Desertion" and "Absence from 

station and duty after his leave had expired" for the same period of unauthorized 
absence. C M. O. 49, 1910, 15-16; 5, 1914, 7. See also Desertion, 5. 



CHARGES AND SPECIFICATIONS. 67 

66. Same— Accused should not be charged with both "Attempting to desert " and "Ab- 

sence from station and duty without leave from proper authority" for the same 
period of unauthorized absence. C. M. O. 23, 1910, 6. 

67. Same — Accused should not be charged with both "Falsehood' 7 and "Conduct to the 

prejudice of good order and discipline " for the same identical offense— It is frequently 
advisable, when the crime is of a complicated nature, or it is uncertain whether the 
evidence will support the higher and more criminal part of the charge or the charge 
precisely as laid , to insert two or more specifications under the charge. Every cautious 
pleader will insert as many specifications as will be necessary to provide for every pos- 
sible contingency in the evidence, and this the law permits. In naval cases where 
the offense falls apparently equally within the purview of two or more Articles for the 
Government of the Navy, or where the legal character of the act of the accused can 
not be precisely known or denned until developed by the proof, it is not infrequent 
in cases of importance to state the accusation under two or more charges. If the two 
articles impose different penalties, it may, for this additional reason, be desirable to 
prefer separate charges, since the court will be invested with a wider discretion as to 
the punishment. Where, however, the case falls quite clearly within the definition 
of a certain specific article, to resort to plural charges is neither good pleading nor just 
to the accused. C. M. O. 19, 1911, 3-4. 

68. Same— It is neither good pleading nor just to the accused to resort to plural charges for 

the same offense when the offense is clearly defined. An unnecessary multiplication 
of forms of charge for the same offense is always to be avoided. C. M. 0. 19, 1911, 3. 

69. Names— Middle names may be abbreviated in specifications. See Charges and 

Specifications, 60. 

70. Neglect or disorder not specially provided for — When the offense is a neglect or 

disorder not specially provided for, it shall be charged as " Scandalous conduct tending 
to the destruction of good morals," or "Conduct to the prejudice of good order and 
discipline." C. M. O. 4, 1913, 45; 49, 1915, 17, 18; File 26251-9280; 26262-1920, 1921, 
Sec. Navy, Jan. 5, 1914. See also "Catch-all" Clause, 1. 

71. "Negligence in the performance of duty"— Is a lesser degree of the charge "Cul- 

pable inefficiency in the performance of duty." C. M. 0. 12, 1910, 1. 

72. Nolle Prosequi. See Nolle Prosequi. 

73. Objections to— Procedure in case of. See Charges and Specifications, 33, 34. 

74. Offense— Charge should contain only one offense — Offenses of a perfectly distinct 

nature must not be included in one and the same charge and specification of a charge, 
but each offense of a different kind shall be the subject of a distinct charge and speci- 
fication. C. M. O. 35, 1915, 6-7; 16, 1916. See also Charges and Specifications, 53. 

75. Same— Must allege an offense. See Charges and Specifications, 39. 

76. One charge— The figure "I" should not be used. See C. M. O. 32, 1915, where this 

was erroneously done. 

77. One offense— Specification should contain only one offense. C. M. O. 16, 1916, 6-7. 

See also Charges and Specifications, 53, 74. 

78. Particular words— Where particular words form the gist of the offense, they must 

be set forth with particularity, or declared to be of the like meaning and purport. 
(R-714 (3).) 

79. Particularity of description— Is desirable. See Charges and Specifications, 49: 

80. Period of unauthorized absence— Should be alleged. See Absence, 10, 11; Ab- 

sence from Station and Duty Without Leave, 29. 

81. Perjury. See Perjury, 1, 3, 16. 

82. Place— Of offense should be alleged in specifications. (G. C. M. Rec. 23743.) C. M. 

0. 10, 1901, 7; 3, 1907, 1; 10, 1911, 7. See also Charges and Specifications, 39, 92. 

83. Plea of "guilty"— Waives defects in specifications. See Absence from Station 

and Duty Without Leave, 29. 

84. Plurality or multiplicity of charges. Sec Charges and Specifications, 31-32, 

61-68. 

85. Record of proceedings— The original charges and specifications should be prefixed 

not appended to the record of proceedings. C. M. O. 24, 1909, 3; 28, 1910, 5. ' See 
also G. O. 114, March 22, 1869. This overrules C. M. O. 1, 1S94, 3; 3, 1894; 62, 1894; 
54, 1898. 

86. Same— The date the accused received a copy of the charges and specifications should 

be entered on the record of proceedings. C. M. O. 36, 1905, 3: 17, 1910, 5. See also 
Record of Proceedings, 44. 

87. Reiteration— Of charges and specifications. C. M. O. 42, 1909, 9; 51, 1910. 2; 23, 1910, 6. 

See also Charges and Specifications, 31-32, 61-68. 



68 CHARGES AND SPECIFICATIONS. 

88. Robbery. C. M. 0. 8, 1913, 5-7. See also Charges and Specifications, 92; Robbery. 

89. Sentence — Maximum sentence that may be adjudged where there is a multiplicity 

of charges. See Excessive Sentences, 2, 3. 

90. Service on accused. See Charges and Specifications, 4, 5, 18. 

91. Signing of, by convening authority— Time and place of signing charges and speci- 

fications by convening authority should be stated. C. M. 0. 159, 1897, 2; 160, 1897, 2. 
Precepts and charges and specifications must affirmatively show on their face that 
the officer signing was one of those mentioned in the law authorized to convene naval 
courts-martial. The single word "Acting" beneath the signature does not indicate 
in any way that the officer signing has the necessary authority. File 26262-1920, 1921, 
Sec. Navy, Jan. 5, 1914. See also Convening Authority, 03. 

92. Specifications — The department has criticized faulty specifications for the follow- 

ing reasons: 

Absence, unauthorized . See Absence from Station and Duty Without Leave, 
10, 12, 13, 29. 

Dates.— Must be written in specifications. CM. O. 28, 1910, 5. 

Desertion. — Date of identification of accused while serving in Army must be alleged 
in specification. C. M. O. 33, 1912, 2; 6, 1913, 4. 

A specification which simply alleges that the accused deserted from a certain 
ship, continuing in desertion until after departure of said vessel, and which does 
not further allege that he deserted from the United States Navy, or more properly 
that he continued in such unauthorized absence with intent to permanently abandon 
the naval service, is not sufficient to sustain a charge of desertion. C. M. . 49, 1910, 9. 

Drunkenness on duty. — The specification under a charge of " Drunkenness on duty" 
did not specify any duty that the accused was performing, simply stating that he was 
so much under the influence of some intoxicant as to be unfit for the proper perform- 
ance of his duty. C. M. 0. 12, 1909, 1; 23, 1910, 4. 

Each specification must support charge. — Each specification standing alone must 
contain sufficient allegations to support the charge under which it appears. C. M. O. 
107, 1894, 2; 21, 1910, 7, 8, 11. 

Language. — Objectionable language used by accused must be set forth. C. M. O. 
7,1911,12. 

Multiplicity of specifications. See Charges and Specifications, 31-32, 61-68. 

Names.— Middle names mav be abbreviated. C. M, O. 36, 1914, 6, 7; 4, 1916. See 
also C. M. O. 150, 1897, 3; 1, 1914, 4; 5, 1914, 7; 40, 1914. 

Not well drawn. C. M. O. 34, 1900, 1. 

One charge— Figure "1" not to be used. See C. M. O. 32, 1915. 

One offense.— Specification should contain only one offense. C. M. O. 8, 1911, 8; 
16, 1911, 3; G. O. 114, Mar. 22, 1869; C. M. O. 16, 1916, 6-7. 

Party accused.— Specification must designate party accused. C. M. O. 3, 1907, 1. 

Perjury. — A specification of the charge alleging perjury was faulty, in that, while 
it properly alleged that the testimony given by the accused was false, it did not set 
forth what was the truth in regard to the matter. (U. S. v. Pettus, 84 Fed. Rep., 
791 794; Bartlett v. U. S., 106 Fed. Rep., 884.) C. M. O. 47, 1910, 5. 

Place of offense. — The specification must show the place where the offense was 
committed. C. M. O. 3, 1907, 1; 10, 1901, 7; 10, 1911, 7; G. C. M. Rec. 23743. 

Plurality of specifications. See Charges and Specifications, 31, 32, 61-68. 

Robbery.— The essential feature of the crime of robbery which distinguishes it from 
theft both in common law and statutory law is the taking from the person or in the 
presence of the owner or custodian, and as this very essential and necessary element 
was not alleged in the specification the department held that it did not support the 
charge and that there had not been a legal trial and conviction and disapproved the 
finding on that charge and specification. C. M. O. 8, 1913, 5-7. 

Seditious words. — Specification did not allege that the words uttered were either 
known to be seditious, or that they were spoken with that intent; such an allega- 
tion is essential. C. M. 0. 14, 1910, 14. 

Time of offense. — The specification must show, at least approximately, the time of 
the commission of the offense. C. M. O. 33, 1914, 6. See also C. M. O. 3, 1907, 1; 10, 
1911 , 7; 19, 1912, 5; File 26287-2121, Sec. Navy Aug. 5, 1914; 26251-12309, October, 1916. 

Two offenses in one specification.— A specification is faulty which alleges two sepa- 
rate and distinct offenses. C. M. O. 8, 1911, 8; 16, 1911, 3. See also G. 0. 114, March 
22, 1869. 

Accused was tried by summary court-martial under one specification which alleged 
"his return to said ship from special liberty drunk and disorderly;" and that he did 
" while being placed in confinement * * * forcibly resist arrest." Thus two dis- 



CHARGES AND SPECIFICATIONS. 69 

tinct offenses were set forth in a single specification, whereas "each offense of a differ- 
ent kind shall be the subject of a distinct specification." This error of setting forth 
several offenses in the same summary court-martial specification is generally com- 
mitted in joining "absence over leave" with such offenses as "drunk and disorderly," 
"returning on board drunk and unfit for duty," and "breaking arrest." Each of the 
latter offenses is distinct in itself, and should be set forth in a separate specification. 
(See R-608.) C. M. O. 16, 1916, 6-7. 

93. Specifications, drawing of— The specifications of each charge, one or more, must be: 

a. Brief, clear, and explicit.— The facts, circumstances, and intent constituting the 
offense must be set forth with certainty and precision, and the accused charged directly 
and positively with having committed it. [See Charges and Specifications, 92.] 

b. Certain as to the party accused.— He must be described by his title and rank , 
or rating, Christian name and surname written at full length, with the addition of his 
vessel or service at the time the offenses with which he shall be charged took place. 
(See CM. 0.3, 1907, 1.) 

c. Certain as to time. — The time when the alleged offenses occurred should be set 
forth minutely and precisely. Should any doubt exist in regard to the time, it may 
set forth in the specification that the act was committed "on or about" such a time, 
but the limitation as to date must embrace a reasonable time only. (See Charges 
and Specifications, 92; Findings, 18, 27, 32, 33, 35.) 

d. Certain as to place.— The place where the alleged offenses occurred should be set 
forth minutely and precisely. Should any doubt exist in regard to the place, it may be 
set forth in the specification that the act was committed "at or near" such a place. 
But when the geographical position of a ship is not material to a complete description 
of the offense, such as the theft of another's clothing or any other act committed wholly on 
board ship, such particular geographical position need not be specified. 

e. Certain as to the person agamst whom the offense was committed. — In the case of 
offenses against the person or property of individuals, the Christian name and surname 
with the rank and station or duty of such person, if he have any, must be stated at 
length, if known. If not known, the party injured must be described as a "person 
unknown." 

/. Certain as to the facts, circumstances, and, where intent forms an ingredient of the 
offense, the intent constituting the offense.— It is not sufficient that the accused be 
charged generally with having committed an offense, as for instance, with habitual 
violation of orders or neglect of duty, but the particular acts or circumstances consti- 
tuting such offenses must be distinctly set forth in the specification. (See C. M. O. 3, 
1907, 1; G. O. 114, March 22, 1869; File 26251-12309, J. A. G., October, 1916.) 

94. Statute, breach, of— It is not necessary to specify in a charge that an offense was com- 

mitted in breach of any particular statute or Article for the Government of the Navy, 
but whenever the allegation comes directly under any enactment it shall be set forth 
in the terms used therein. (R-712.) 

95. Struck out by court. C. M. 0. 16, 1911, 2-3. See also Nolle Prosequi, 8. 

96. Substitutes and exceptions— Made in findings of court. See Findings, 27-37. 

97. Summary court-martial— No charges should be used. See Summary Courts- 

Martial, 10. 

98. Same— Form of specifications. See Charges and Specifications, 45, 92. 

99. Support charge— The specification must support the charge— Fleet convening author- 

ity preferred charges and specifications against an officer. The Secretary of the Navy 
in revising the record decided that the specification did not support the charge and 
set the sentence aside. C. M. O. 4, 1916. See also Fraud, 5; C. M. 0. 107, 1894, 2. 

"All the technicalities which have been applied to common-law indictments are 
not required in specifications in court-martial proceedings. Here it is sufficient if the 
facts constituting the offense be described with such certainty as to clearly inform the 
accused of his alleged misconduct and of the offense with which he is charged." (28 
Op. Atty. Gen., 292. See also 7 Op. Atty. Gen., 605.) C. M. O. 8, 1913, 6-7; File 
26251-12309. 

100. Time— Of the commission of the offense should be alleged. See Charges and Specifi- 

cations, 92, 93; Findings, 27, 32, 35. 

101. Vague— Specifications. C. M. O. 78, 1905, 1; 7, 1911, 12; File 26262-1065, J. A. G. See 

also Charges and Specifications, 51; File 26262-729:2, Sec. Navy, Feb. 25, 1910. 

102. Valid — A specification of charge is good and will support the finding and sentence upon 

it, with or without descriptive designation of the quality of the imputed criminal act . 
provided it appear that the facts alleged and proved constitute, in any point of view, 
the offense charged. (See 7 Op. Atty. Gen., 601.) C. M. O. 4, 1914, 7. See also 
Charges and Specifications, 49. 



70 CHARGES AND SPECIFICATIONS. 

103. Same — The specification must, on its face, allege facts which constitute a violation of 

some law, regulation, or custom of the service. If the offense committed does not con- 
stitute a violation of some law, regulation, or well-known custom of the service, of 
which judicial notice can be taken, the facts must be alleged with particularity in order 
to show that some offense was committed. C. M. O. 33, 1914, 6. 

It is entirely and properly the province of the court to decide the issue, when such 
is raised, as to the validity of a specification. C. M. O. 16, 1911, 4. 

104. Withdrawal— Of charges and specifications by convening authority. See Nolle Pros- 

equi. 

105. Witness— "When may be read to — Before a witness shall be examined the general 

charges may be read to him, if the court thinks proper; but the specifications shall not 
be read to him, particularly when they are so worded as to instruct him how to answer 
or to make known to him the minute facts of the case. See C. M. O. 40, 1893; 94, 
1897, 2. 

106. Written instruments— Written instruments, or so much thereof as form part of the 

gist of the offense charged, must be set out verbatim, with care and accuracy. 

When the substance only is intended to be set out, it should be introduced by the 
words "in substance as follows." The word "tenor" implies that a correct copy is 
set out. (R-717.) 

CHARTS. See also Coast and Geodetic Survey. 

1. Coast Survey Charts. C. M. O. 29, 1909, 1; 30, 1909, 2; 24, 1911; 31, 1916. 

2. Commanding officer— Tried by general court-martial for neglecting to supply the 

officer of the deck with proper chart. C. M. O. 29, 1909, 1. 

3. Hydrographic Office Chart— No. 967. C. M. O. 2, 1914, 2; 3, 1914. 

CHEATING. See Blotter; Gouging; Midshipmen, 22; Officers, 13. 

CHECKS. 

1. Allotment checks— Minors. See Allotments, 5. 

2. Cashing— Minors would have trouble in cashing allotment checks. See Allotments, 5. 

3. Certified checks. See Words and Phrases. 

4. Custom— Of marking checks as exchanged for cash. C. M. O. 4, 1913, 6. 

5. Death gratuity check. See Death Gratuity, 13. 

6. Photographic copies— Of checks as evidence. See Evidence, Documentary, 37. 

7. Worthless checks— Retired chief boatswain tried by general court-martial for passing 

worthless checks. C. M. 0. 15, 1915. 

CHECKING PAY. 

1. Enlisted man— Paymaster erroneously checked pay. C. M. O. 10, 1915, 12. See also 

Auditor for the Navy Department, 6. 

2. Lost property. See Pay, 17, 18. 

CHIEF BOATSWAINS. 

1. General court-martial— Tried by. CM. 0.16, 1914; 18,1914; 21,1914; 23,1915; 25,1915; 

21, 1916. 

2. Same— Chief boatswains are commissioned officers and are therefore entitled to serve 

as members of general courts-martial under A. G. N. 39. File 5819-2, Oct. 30, 1906. 

3. Promotion— Examination for. See Promotion, 206, 216. 

4. Retired chief boatswain— Tried by general court-martial. C. M. 0. 15, 1915. 

CHIEF CARPENTERS. 

1. General court-martial— Tried by. C. M. O. 37, 1914; 48, 1914; 21, 1915. 

CHIEF CLERK, NAVY DEPARTMENT. 

1. Duties of— To facilitate and aid the Secretary of the Navy in the exercise of his many 
and varied important duties and responsibilities, he has an office force, supervised by 
the chief clerk of the department, which is required to determine and pass upon all 
matters requiring his action which by law or regulation, are not otherwise required 
to be handled. File 22353-13. 

CHIEF CLERKS OF BUREAUS. 

1. Acting chiefs — hi certain bureaus the chief clerk of the bureau becomes acting chief 
thereof in case of the absence or sickness of the chief of the bureau, unless otherwise 
directed by the President under R. S. 179. File 22724-14, Dec. 17, 1909. See also 
Act of August 29, 1916 (39 Stat. 558). 

CHIEF ENGINEER. 

1. General court-martial— Tried by. C. M. O. 25, 1882; 3, 1884; 49, 1884. 



CIRCULARS OF THE DEPARTMENT. 71 

CHIEF GUNNERS. 

1. General court-martial— Tried by. C. M. 0. 2, 1916. 

CHIEF MACHINISTS. 

1. Command— Exercise of command. See Command, 21. 

2. General court-martial— Tried by. C. M. O. 12, 1914; 52, 1914; 28, 1915; 36, 1915. 

CHIEF NAVAL CONSTRUCTOR. See Bureau Chiefs, 9. 

CHIEFS OF BUREAUS. See Bureau Chiefs. 

CHIEF OF BUREAU OF MEDICINE AND SURGERY. See Bureau of Medicine 
and Surgery, 1, 2; Medical Records, 1, 3, 4, 5. 

CHIEF OF NAVAU OPERATIONS. 

1. Court-martial order— Recommendation published in. C. M. O. 41, 1915, 3; 26, 1916, 

3; 27, 1916, 4. 

2. Commission for. See Commissions, 25. 

CHIEF OF STAFF. 

1. Title of— "The title of Fleet Captain is changed to that of Chief of Staff." G. O. 122, 
April 26, 1869. 

CHIEFS OF STAFF CORPS. 

1. Retirement of— For abstract of laws relating to. See 14 J. A. G., 292, February 9, 1910. 

CHIEF PAY CLERKS. 

1. Appointment of. See Pay Clerks and Chief Pay Clerks, 1-3. 

2. General court-martial— Tried by. C. M. O. 46, 1915; 28, 1916; 36, 1916. 

CHIEF PHARMACISTS. See Pharmacists and Chief Pharmacists. 

CHIEF PRINTERS. 

1. Rating.— Establishment of. See Rating, 2. 

CHIEF SAILMAKERS. 

1. General court-martial— Tried by. C M. O. 73, 1901; 4, 1908. 

CHIEF YEOMEN. 

1. Acting par clerk — Chief yeomen holding an acting appointment as such are eligible 
for appointment as acting pay clerks if otherwise eligible. See Pay Clerks and 
Chief Pay Clerks, 2. 

CHILEAN INDEMNITY FUND. 
1. U. S. S. ^'Baltimore" — The sum of $75,000 was informally appropriated by Chile to 
be distributed among the crew of the U. S. S. Baltimore who received personal in- 
juries at Valparaiso in October, 1891. The Secretary of the Navy undertook the 
distribution of this money. File 8635-1898; 8654-1898. See also An. Rep. J. A. G., 
1894, p. 5. 

CHINA CAMPAIGN. See China Campaign Badges; War, 7. 

CHINA CAMPAIGN BADGES. 

1. Revocation of — Where an enlisted man of the Marine Corps was discharged as "unfit 
for the service" in order that a life sentence of penal servitude, pursuant to convic- 
tion in a civil court on the charge of murder, might be carried into effect, an award 
of "the China and Philippine campaign badges for his services in those campaigns 
should be revoked." The authority to revoke under such circumstances in cases of 
enlisted men in the Marine Corps may be exercised by the Major General Commandant 
of the Marine Corps. File 26519-3:2, Sec. Navy, March 11, 1915, explaining file 26519-3, 
Sec. Navy, Dec. 1, 1914; C. M. O. 12, 1915, 8. 

CHINAMEN. 

1. Citizenship of. See Citizenshd?, 3-6, 11. 

CHIROPODISTS. 

1. Law— No law authorizing the emplovment of chiropodists in the Navy as such. File 
26509-166, Sec. Navy, Aug. 14, 1916. 

CIGARETTES. 

1. Smoked by officer of the deck. See Officer-of-the-Deck, 3. 
CIRCULARS OF THE DEPARTMENT. 

1. Civil courts— Weight given to circulars of the department by civil courts. See Statu- 

tory Construction and Interpretation, 20. 

2. Waiving of. See Acting Assistant Surgeons, 2. 



72 CITIZENSHIP. 

CITIZENRY. See C. M. O. 14, 1915, 2. 

CITIZENSHIP. 

1. Adoption. See Citizenship, 34. 

2. Aliens— Naturalization of alien enlisted men under act of June 30, 1914. (38 Stat., 395) — 

The naval appropriation act, approved June 30, 1914 (38 Stat., 395), provides, among 
other things* that enlisted men who hold an honorable discharge from the Navy or 
Marine Corps, or an ordinary discharge with recommendations for reenlistment, may 
upon application to a court of competent jurisdiction be immediately naturalized, if 
otherwise eligible, without previous declaration of intention to become a citizen and 
without proof of residence on shore. An alien who desires to become a citizen under 
this law should be advised to apply to the clerk of the nearest United States district 
court for the necessary papers, and any other information to enable him to become a 
citizen of the United States under the provisions of the above-mentioned law. File 
26252-94, J. A. G., Dec. 30, 1914; C. M. O. 6, 1915, 7. 
3. Chinese— The statutes of the United States with respect to naturalization authorize 
the naturalization only of white persons, or persons of African nativity or descent, 
or members of anv Indian tribe or nation residing in the Indian Territory. Section 
14 of the act of May 6, 1SS2 (22 Stat.. 61), also specifically prohibits the naturalization 
of Chinese. The naturalization of Chinese and other Mongolians and of ail persons 
not white, nor of African nativitv or descent, nor an Indian as aforesaid, is void. 
(See R. S. 2169; 26 Stat., 99, see. 43; 5 Saw., 155; 16 Nev., 50,61; 84Cal., 163; 21 Pac. 
Rep., 993; 149 U. S., 716; Instructions to the Dip. Ser. of the U. S., p. 53.) 

4. Same — A person of the Chinese race, born in the United States of alien parents, sub- 

ject to the jurisdiction of the United States, is a citizen of the United States by birth 
without regard to whether or not the laws permit the naturalization of persons of 
his race. See File 26252-68, June 19, 1912; 26252-100, June 1, 1915; 26252-84; 26252- 
100. See also U. S. v. Len Jin, 192 Fed. Rep., 580. 

5. Same— It is the practice of the Navy Department, where claimants to citizenship 

have submitted the best evidence they can obtain, after consideration of affidavits 
submitted by claimants, to refer the papers to the Department of Labor with request 
for a statement of such pertinent facts as it might be able to furnish. Then, when 
the papers are returned with additional information, it is usually possible to deter- 
mine whether the evidence is sufficient to establish citizenship. File 26252-100, June 
1, 1900. 

6. Same — It is held by the Federal courts that in deportation proceedings the burden 

of proof is upon the Chinese person claiming to be a natural-born citizen, and the 
United States is not bound to establish the contrarv. See Yee Gen t g v. U. S., 190 
Fed. Rep.,270;actMay5, 1892, sec. 3, 27 Stat., 25; File 26252-68, J. A. G., June 19, 1912. 
See also Promotion, 19. 

7. Desertion— Effect of conviction of desertion on rights of citizenship. See Deser- 

tion, 23-29. 

8. Dishonorable discharge — Effect on citizenship rights. See Dishonorable Dis- 

charge. 5, 6. 

9. Enlisted men— Naturalization of alien enlisted men under act June 30, 1914 (38 Stat., 

395). See Citizenship, 2. 

10. Same— Citizenship for pay purposes. File 26252-74, Sec. Navy, Apr. 14, 1913. 

11. Same — Where the Bureau of Navigation decided, after consideration of all the evi- 

dence in the case, that a Chinaman who was an enlisted man in the Navy was a citi- 
zen of the United States, and changed his birthplace and citizenship on the depart- 
ment's records accordingly; and the Auditor for the Navy Department, upon a 
question of pay, decided after consideration of the same evidence, that it was not 
sufficient to establish the fact of his birth in the United States; it was held by the 
department that the decision of the accounting officers is not in any sense binding 
upon the department in its determination of the citizenship or identity of an enlisted 
man, and that no new evidence having been obtained, the decision of the Bureau of 
Navigation would not be reopened. File 26252-56, Feb. 1, 1910. Subsequently the 
Comptroller of the Treasury reversed the auditor's action upon consideration of the 
same evidence. Comp. Dec. Mar. 12, 1910, File 26254-424. 

12. Enlistments in the Navy— Inasmuch as persons enlisting in the Navy are not required 

by law to be citizens of the United States, but the matter is merely one of regulation, 
it is unnecessary that the department should undertake to make any decision con- 
cerning the citizenship of men under unusual circumstances. File 26252-104, J. A. 
G., Apr. 25, 1916. See also File 26252-101, Sec. Navy, Nov. 6, 1915. 



CITIZENSHIP. 73 

In considering the case of an applicant for enlistment whose citizenship status was 
doubtful it was said: "In the absence of a specific judicial decision on the subject this 
department does not feel warranted in extending the statute to include the case pre- 
sented, the interpretation of statutes conferring citizenship being under the jurisdic- 
tion of the courts, whose decisions should be followed rather than anticipated by 
executive officers." File 26252-101, Sec. Navy, Nov. 6, 1915; 22252-104. 

"Except as provided in article R-3527 (1) no person shall be enlisted or reenlisted 
who is not a citizen of the United States or a native of the insular possessions, and 
who does not understand and speak the English language." (Navy Regulations, 
1913, R-3523 (5).) See File 26262-104, J. A. G., April 25, 1916. See also Aliens, 12. 

13. Evidence of. See Comp. Dec. Mar. 21, 1907 (73 S. & A. Memo. 265). 

14. Expatriation. See Citizenship, 17; Expatriation; Retired Officers, 31. 

15. Filipinos. See Filipinos. 

16. Foreign-born minor— Child of alien parents— Mother divorced and married an 

American citizen. File 26252-101, Sec. Navy, Nov. 6, 1915. 

Children born abroad of aliens, who subsequently emigrated to this country with 
their families, and were naturalized here during the minority of their children, areciti- 
zens of the United States. (10 Op. Atty. Gen., 329.) File 26252-62, J. A. G., July 12, 
1911, p. 2. See also Citizenship, 25. 

17. Foreign country, living in— A person who voluntarily takes up his residence in 

another country, contributing his labor, talents, or wealth to the support of society 
there, may be regarded as having waived his right of protection from his own country; 
and such facts may become material upon the question whether he has not expatri- 
ated himself and voluntarily relinquished his rights as a citizen of the United States. 
(See 3 Moore's Digest of International Law, pp. 759-760.) C. M. O. 29, 1915, pp. 10-11. 
See also Expatriation, 2; Retired Officers, 31. 

18. Same— By the general law as well as by the decisions of the most enlightened judges 

both in England and in the United States a neutral engaged in business in an enemy's 
country during war is regarded as a citizen or subject of that country. C. M. O. 
29, 1915, pp. 10-11. See also Neutral, 1; Retired Officers, 31. 

19. Forfeiture of citizenship. See Desertion. 23-29; Dishonorable Discharge, 5, 6; 

Citizenship, 17, IS. 

20. Guam — Inhabitants of Guam desiring to oecome citizens of the United States may 

become naturalized by application to a court of competent jurisdiction in the United 
States, but can not be naturalized by any court in Guam. File 26252-90, Feb. 27, 1914. 
See also File 26252-96, Feb. 10, 1915. 

21. Hawaii— The citizens of Hawaii were made citizens of the United States by the act of 

April 30, 1900 (31 Stat., 141). See in this connection File 26252-111, J. A. G. Jan., 1917. 
Laws bearing upon the question of citizenship of Hawaiians. See File 26254-610:1. 

22. Indians. See Indians, 3, 4. 

23. Japanese— An alien born abroad of Japanese parents is not eligible to become a natu- 

ralized citizen of the United States; and where a certificate of naturalization was issued 
such alien by a court of competent jurisdiction, such certificate is null and void and 
does not entitle him to the benefits of citizenship. File 26252, Apr. 9, 1908; 85 S. & A. 
Memo. 622. 

24. Midshipmen. See Midshipmen, 8. 

25. Minor children— The children of persons who have been naturalized under any law 

of the United States, being under the age of 21 at the time of the naturalization of their 
parents, shall, if dwelling in the United States, be considered as citizens thereof. 
(See R. S., 2172.) File 26252-62, J. A. G., July 12, 1911, p. 2. See also State ex rel. 
Carey v.Andriano (92 Mo., 70); Gumm v. Hubbard (97 Mo., 311); U. S. v. Kellar (13 
Fed. Rep., 82-84). See also Citizenship, 16. 

26. Name misspelled in naturalization certificate— This defect is not such as to invali- 

date naturalization (see U. S. v. Erickson, 188 Fed. Rep., 747). The spelling of the 
man's name in the certificate of naturalization should be regarded as erroneous, but 
not fatally defective, and the department's records correct. Accordingly in such a 
case a man may properly be regarded as a citizen of the United States, and the spelling 
of his name on the department's records need not be changed. File 24368-19, J. A. G.\ 
June 20, 1916. 

27. Officer— Renouncing citizenship by resuming citizenship in a State of which he was 

formerly a citizen. See Expatriation, 3; An. Rep., J. A. G., 1914, p. 24. 

28. Same— Only a citizen may be an officer. File 26252-105, 105:1, J. A. G., June 10, 1916: 

17606-49, J. A. G., Dec. 17, 1912; R-3301; R. S. 1428. 

29. Persons born in United States. File 26252-89, J. A. G., Jan. 22, 1914. See also V S 

v. Wong Kim Ark, 169 U. S., 702; Citizenship, 4. 



74 CITIZENSHIP. 

30. Philippine Islands. See Filipinos. 

31. Porto Rico — A citizen of Porto Rico is not eligible for appointment as a second lieuten- 

ant in the Marine Corps. File 6730-04. See also Downes v. Bidwell, 181 U. S., 
244; Marine Corps, 68; Porto Rtco, 4. 

32. Same— As to eligibility of citizens of Porto Rico for employment at navv vards. See 

File 3194-3 and 3194-4. 

33. Renouncing. See Expatriation, 2. 

34. Requirements for— An enlisted man of the Navy was born in Canada of alien parents, 

and at the age of 18 was brought by his mother to the United States and was subse- 
quently legally adopted by citizens of the United States. It did not appear that the 
man's father was ever fully naturalized in the United States, although it was stated 
that the father died after taking out his "declaration papers. " It further appears that 
his mother is no w a citizen of the United States. Held, A citizen of the United States 
can not by adopting a child of foreign nationality, confer on such child the privileges 
of citizenship in the United States. In order to determine whether or not this enlisted 
man is a citizen of the United States it must be shown positively, (1) whether or not 
his father was fully naturalized; (2) if his father was not fully naturalized then his 
citizenship depends upon whether his mother was lawfully naturalized before he 
became of age and if she did not become so naturalized before he attained his majority, 
he is not a citizen of the United States unless he can produce a valid certificate of 
naturalization. File 26252-62, J. A. G., July 12, 1911. See also File 1547-26-32, for 
the naturalization laws relating to Navy. 

35. Residence abroad. See Citizenship, 17, 18; Expatriation, 2; Retired Officers, 31. 

36. Restoration of rights of citizenship— To deserter by pardon. See Deserters, 

17-20; Desertion, 41; Pardon, 2, 11, 37, 39, 52. 

37. Restoration to duty— Of deserter— Effect of on citizenship. See Deserters, 24. 

38. Retired officers— Living abroad indefinitely. See Retired Officers, 32. 

39. Widow— The naturalization of an alien woman, a widow, confers citizenship upon her 

minor son. (Van Dyne's " Citizenship," p. 118, referring to R. S. 2172). File 26252-62, 
J. A. G.. July 12, 1911, p. 3. 

40. Wife.— Citizenship of. See File 26252-62, J. A. G., July 12, 1911, p. 3. 

CIVIL ACTIONS. 

1. Liability of officers and enlisted men to. See Legal Liability; Members of 
Courts-Martial, 7; Secretary of the Navy, l. 

OWL AUTHORITIES. See also General Order No. 121, September J 7, 1914. 

1. Action by commanding officers— Where men convicted by the civil authorities. 

See General Order No. 121, Sept. 17, 1914, 1, 2, 4-6. 

2. Agreements-Required of State authorities. See General Order No. 121, Sept. 17, 

1914, 1. 

3. Same— Not required of Federal authorities. See General Order No. 121, Sept. 17, 

1914, 2. 

4. Arrest and acquittal by civil authorities— Is a defense to unauthorized absence but 

otherwise if convicted. See Absence from Station and Duty After Leave Had 
Expired. 3. 

5. Arrest of deserters by civil authorities. See Civil Officers, 2; Deserters, 2-6. 

6. Bail— If enlisted man arrested by civil authorities and returns to ship on bail, the 

commanding officer mav grant him leave of absence to appear for trial. See Bail, 1; 
General Order No. 121, Sept. 17, 1914, 14; Jurisdiction, S. 

7. Same— Pay. See Bail, 2. 

8. Comity between civil and naval authorities— It is the practice of this department 

to cooperate to the fullest extent with the civil authorities, both Federal and State, 
where demand is made for the surrender to them of any person in the naval service 
who is charged by either of said authorities with crime. To that end the department 
has issued elaborate instructions on the subject (G. . 121, Sept. 17, 1914), and in proper 
cases surrender of the person requested is invariably made upon compliance by the 
civil authorities with certain conditions exacted by the Secretary of the Navy in the 
general order cited. The department in some instances has returned parole violators, 
and assisted in the identification of escaped convicts, who . of course , are very undesirable 
for the naval service. The civil authorities generally have become very familiar with 
the department's practice, and in most cases willingly meet the department's demands. 
On the other hand, where enlisted persons in the naval service are arrested by the civil 
authorities while away from their commands, the State authorities in many cases, as a 
matter of comity, inform the accused 's commanding officer, and in some instances men 



CIVIL AUTHORITIES. 75 

have been released and turned over to the custody of their commanding officer until 

their appearance is desired in the civil court. File 26524-209. Sec. Navy, Dec. 13, 1915. 

It is the department's policy and purpose to cooperate with the civil authorities to 

the fullest extent in proper cases, and upon identification and compliance by the 

civil authorities with the conditions enacted in General Order No. 121 the men desired 

are promptly surrendered to the civil authorities, who have become very familiar 

with the department's practice on the subject. File 26524-207, J. A. G., Nov. 20, 1915. 

"It is the policy of the Navy Department at all times to cooperate with the civil 

authorities, both Federal and State, and not in any manner where it can be avoided 

to interpose any obstacle to the due course of civil or criminal proceedings." File 

26524-275:5, J. A. G., Aug. 8, 1916. See also Civil Authorities. 16. 

9. Commanding officer— Duty of , when civil authorities request delivery of an enlisted 

man. See General Order No. 121, Sept. 17, 1914, 4. 

10. Same — Arrested by — Should report his whereabouts to proper authorities. See 

Arrest, 7; Commanding Officers, 2. 

11. Contempt of court— An enlisted mai was delivered to civil authorities, on proper 

request being made, for having been "adjudged in contempt of court by the Supreme 
Court of New York for having failed to make a return to a writ of habeas corpus requir- 
ing the production of his infant child before said court," etc. File 26524-191, J. A. G., 
Oct. 19, 1915. 

12. Convicts — And fugitives from justice discharged as undesirable — In a case where a 

request was made upon the Navy Department by the civil authorities for delivery 
of an enlisted man, the department stated as follows: 

"It being established by the foregoing that the above-named man was a convicted 
criminal and fugitive from justice at the time of his enlistment in the Navy, it is di- 
rected that instructions be issued immediately for his discharge from the Navy as 
undesirable, but that said discharge be held in abeyance until such time as a civil 
officer may call at the Naval Training Station, Great Lakes, 111., to apprehend him 
under the requisition of the governor of Pennsylvania, in order that he may be taken 
into custody by such officer immediately upon his discharge." File 26524-194, Sec. 
Navy, Oct. 18, 1915; C. M. O. 35, 1915, 8. See also Convicts, 2; Fugitive from Jus- 
tice. 

13. Cooperation — Of department with civil authorities. See Civil Authorities, 8, 16. 

14. Date — Fixed for trial of enlisted men desired by civil authorities should be shown in 

requisition papers. File 26524-259, Sec. Navy, Apr. 18, 1916. 

15. Delivery of men to civil authorities — Duties of commanding officers. See General 

Order No. 121, Sept. 17, 1914, 4. 

16. Department — Desires to cooperate with civil authorities— The department desires in 

every way to cooperate with the civil authorities, but where the civil authorities 
requested that an enlisted man of the Hospital Corps on duty at a naval station in Cuba 
be transferred to the United States in order that he might be taken in custody upon 
bench warrant and certified copy of indictment for trial by the civil authorities, for 
an offense which is in practice punished by a nominal punishment such as a small fine, 
the department regretfully declined to do so. Such transfer would necessitate sendinga 
relief for the man, and the action requested would in effect amount to granting the man 
a leave of absence and visit home at a nominal cost if convicted, and would fail of its 
purpose as a punitive proceeding. Also men under orders to undesirable duty outside 
the United States might deliberately avail themselves of the precedent which would be 
established in this case in order coflusively to secure their return after a short tour 
of duty abroad. File 26524-181:1, Sec. Navy, Oct. 19, 1915; C. M. O. 35, 1915, 8. 

In this case the Department of Justice made a further request, stating facts which 
presented an "exceptional" and "aggravated" case, for which if convicted it would 
be within the power of the court to" impose a sentence of one year's imprisonment. 
Under these circumstances the department issued the necessary directions to deliver 
this man to the civil authorities for trial. File 26524-lSl:2, Sec. Navv, Nov. 1, 1915: 
C. M. 0. 42, 1915, 9. See also File 26524-144:4, Sec. Navy, Julv 8, 1915; Civil Authori- 
ties, 8. 

17. Deserters— Arrest by civil authorities. See Deserters, 2-6. 

Application of the provisions of General Order No. 110. See General Order No. 
110, July 27, 1914, 20. 

Warrant officer {a deserter) apprehended by civil authorities. See Civil Authori- 
ties, 49. 

18. Enlisted men, delivery to. C. M. O. 10, 1915, 7; 22, 1915, 6: 27, 1915. 7; 29, 1915, 7: 31, 

1915, 5; 35, 1915, 8; 42, 1915, 9. Seealso General Orokk No. 121, Sept. 17. 1914. 



76 CIVIL AUTHORITIES. 

19. Same— There is no law which relates to the delivery of enlisted men in the naval service 

to civil authorities, Federal or State, but, as held by the Attorney General, it rests 
entirely in the discretion of the President in what cases and upon what conditions 
persons in the Navy shall be so delivered. File 26524-259:1, Sec. Navy, Apr. 25, 1916. 

20. Expedition — The office of the Judge Advocate General makes every effort to expedite 

action in cases coming under G. 0. 121 in order to avoid friction with the civil authori- 
ties, and thereby jeopardize the system embodied in that general order. File 26524- 
186, J. A. G., Oct. 21, 29, 1915. See also Civil Authorities, 29. 

21. Extradition. See Civil Authorities, 8, 16, 42; General Order No. 121, Sept. 

17. 1914, 10. 

22. Fugitive from justice — Discharged as undesirable. See Civil Authorities, 12; 

Convicts, 2. 

23. GeneralOrderNo.llO — Application of provisions of, to deserters. .See Civil Authori- 

ties, 17; General Order No. 110, July 27, 1914, 20. 

24. General Order No. 121— Exact compliance with directel. See General Order 

No. 121, Sept. 17, 1914, 6. 

25. Governor's requisition— Necessary in certain cases. See General Order No. 121, 

Sept. 17, 1914, 10. 

26. Habeas corpus proceedings— Federal courts. See General Order No. 121, 

Sept. 17, 1914, 11. 

27. Same— State courts. See General Order No. 121, Sept. 17, 1914, 12. 

28. Hawaii— Application of G. O. 121. See General Order No. 121, Sept. 17, 1914, 13. 

29. Judge Advocate General's Office— Delay in civil authorities cases reaching the 

office. File 12475-73, J. A. G., Mar. 16, 1916. See also Civil Authorities, 20. 

30. Las Animas. File 26524-68, J. A. G., July 25, 1914; 26524-75, Aug. 28, 1914. 

31. Leave of absence — May be granted by commanding officer to an enlisted man who 

returns to ship on bail. See General Order No. 121, Sept. 17, 1914, 14. 

32. Man in hands of— Should inform naval authorities. C M. O. 14, 1914, 4. 

33. Officers arrested by. C. M. O. 24, 1886; 10, 1909; 7, 1914; 19, 1915, 1, 9; G. C. M. Rec. 

31509. 

34. Officer in hands of — Should report his whereabouts to proper authorities. C. M. O. 

19. 1915, 9. See also Commanding Officers, 2. 

35. Panama— Application of G. O. 121. See General Order No. 121, Sept. 17, 1914, 17. 

36. Parole violators— Where the civil authorities requested that an enlisted man be turned 

over to them, as he was a "parole violator," it was directed that he be "discharged 
from the Navy as undesirable and turned over to a representative " of a certain State 
reformatorv, which institution had been requested to call for him as soon as practi- 
cable. File 7657-290:2, Sec. Navy, June 7, 1915; C. M. O. 22, 1915, 6. See also File 
26524-319, J. A. G., Nov. 17, 1916: Civil Authorities, 8. 

37. Prisoners, naval — Wanted by civil authorities for trial. See General Order No. 

121, Sept. 17, 1914, 15, 16. 

38. Same— Wanted as witnesses or parties in civil courts. File 26524-117, J. A. G., Dec. 28, 

1915. See also General Order No. 121, Sept. 17, 1914, 15, 16, 23. 

39. Process, service by— Upon court-martial prisoners. See General Order No. 121, 

Sept. 17, 1914, 15, 16. 

40. Records— Production of records of Navy Department in civil courts. See Civil Courts, 

2; Courts of Inquiry, 12; General Order No. 121, Sept. 17, 1914, 23. 

41. Same— Preliminary examination of records. See General Order No. 121, Sept. 17, 

1914, 23. 

42. Request of civil authorities— To bring enlisted man into jurisdiction denied— An 

attorney representing a civilian in divorce proceedings against his wife requested the 
department to require a certain enlisted man who was named as corespondent serving 
on board a cruising vessel of the Navy to come to Washington, D. C, and submit to 
the jurisdiction of the civ il court in the District of Columbia, "by permitting personal 
service of subpoena upon him." Held, That it would be contrary to the department's 
policy to require this enlisted man to come to Washington for the purpose of sub- 
mitting to the jurisdiction of the civil court, and he must be considered m the same 
status as witnesses who are desired in private litigation, and who are beyond the 
jurisdiction of the court in which such litigation is pending. Accordingly, the above 
request was denied and attention invited to General Order No. 121, par. 18(a). File 
26276-112, Sec. Naw, Sept. 16, 1915; C. M. O. 31, 1915, 5. 

43. Requisition of Governor— Necessary in certain cases. See" General Order No. 121, 

Sept. 17, 1914, 10. 



CIVIL AUTHORITIES. 77 

44. Samoa—Application of G. O. 121. See General Order No. 121, Sept. 17, 1914, 22. 

45. Subpoenas — Service of subpoenas by civil authorities on persons in the naval service. 

See General Order No. 121, Sept. 17, 1914, 23. 

46. Trial — Date fixed for trial of enlisted men desired by civil authorities should be shown 

in requisition. File 26524-259, Sec. Navy, Apr. 18, 1916. 

47. Unjustifiable arrest of a petty officer. See Arrest, 37. See File 7657-374:1, Sec. 

Navy, July 10, 1916, where a police brutally assaulted enlisted men in arresting them 
without apparent cause. 

48. Unusual circumstances — In a recent case it developed, after a man had been deliv- 

ered to the civil authorities, that there were certain unusual circumstances and ■irreg- 
ular proceedings connected with the efforts of the civil authorities to secure the deliv- 
ery of the man, which should have been communicated to the department at the 
time telegraphic instructions were requested. It is possible that, had the depart- 
ment been fully informed thereof at the time, the delivery of the man to the civil 
authorities might not have been authorized, at least pending correspondence with 
the State authorities. File 26524-157: 1, Sec. Navy, July 3, 1915; C. M. O. 27, 1915, 7. 

49. Warrant officer (machinist)— Continued in " Desertion" until delivered by the civil 

authorities. C. M. O. 17, 1911. 

50. Witnesses— Enlisted men in naval service desired by civil authorities as witnesses. 

C. M. O. 31, 1915, 5. See also Civil Authorities, 42. 

51. Same— Enlisted man on duty in Haiti— Department regretfully declined to comply 

with request of civil authorities. File 26276-126, Sec. Navy, Nov. 27, 1915. 

52. Same — Prisoners wanted by civil authorities as witnesses. See General Order 

No. 121, Sept. 17, 1914, 15. 

CIVIL COURTS. 

1. Confinement — By order of civil courts. See Confinement, 6. 

2. Copies — Of records, documents, etc., furnished on call of— It is the invariable practice 

of this department to decline to furnish in the case of legal controversies, at the 
request of the parties litigant, copies of papers or other information to be used in the 
course of the proceedings; but the department will promptly furnish copies of papers 
or records in such cases upon call of the court before which the litigation is pending. 
File 12475-53:1, Sec. Navy, Jan. 30, 1915; letter of Atty. Gen. Jan. 18, 1915, file 12475- 
53:1. (Seealso G. O. No. 121.) C. M. O. 6, 1915, 8. See also File 12475-46, Sec. Navy, 
July 12, 1913; 26250-839:2, Sec. Navy, Sept. 27, 1916; 26250-839:4, Sec. Navy, Oct. 9, 
1916; Courts of Inquiry, 12; General Order No.121, Sept. 17, 1914, 23; Records 
of Officers, 9. 

3. Court of inquiry record — Copy of requested by civil courts. See Courts of In- 

quiry, 12. 

4. Enlistment of criminals— To escape prosecution.— See Convicts, 2, 3; Enlist- 

ments, 5. 

5. Error of procedure— By naval courts-martial— Can not be reviewed by civil courts. 

See Jurisdiction, 18, 26-28, 35, 37, 39. 

6. Fraudulent enlistment— Of minor— Civil courts will not discharge. See Fraudu- 

lent Enlistment, 57, 58, 59. 

7. Litigation in civil courts— It is a policy of the department of long standing not to 

act upon any matters which have been actually presented to the civil courts for 
adjudication, pending the results of such suits. This policy applied to case where 
complaint of nonsupport is made against an officer who has instituted divorce pro- 
ceedings against complainant. File 28478-22:1, Sec. Navy, Apr. 30, 1915; C. M. O. 
16, 1915, 5. 

8. Same— Failure of husband to contribute to wife's support— In a case where a wife 

of enlisted man appealed to department it was "suggested that your redress lies in 
the civil courts." (See G. O. 121, par. 14.) File 26524-214, Sec. Navy, Dec. 8, 1915. 

9. Matters presented to— Department's policy outlined. See Civil Courts, 7. 8. 

10. Procedure— Errors of procedure of naval courts-martial can not be reviewed by civil 

courts. See Jurisdiction, 18, 26-28, 35, 37, 39. 

11. Records — Papers and information for use in civil courts furnished only upon call of 

court. See Civil Courts, 2; Courts of Inquiry, 12; General Or'der No. 121, 
Sept. 17, 1914, 23; Records of Officers, 9. 

12. Reviewing court-martial trials. See Jurisdiction, 18, 26-39. 

13. Sufficiency of charges and specifications— Can not be reviewed by the civil courts. 

(Ex parte Dickey, 204 Fed. Rep., 372.) See Jurisdiction, 28, 36, 37, 39. 

14. Supreme court— Of the District of Columbia. C. M. O. 49, 1915, 23. 

15. United States a party— Advancement of case on the docket. File 26266-161:4, Sec. 

Navy, Dec. 19, 1912. 



78 CIVIL WAR SERVICE. 

16. United States district courts. C. M. 0. 6, 1915, 7; 31, 1915, 7. 
CIVIL, DISABILITIES. C. M. O. 36, 1901, 2. See also Desertion, 23-29; Dishonor- 
able Discharge, 5, 6. 

CIVIL EMPLOYEES. 

1. Criticism or commendation— By the Secretary of the Navy. See Commendatory 

Letters, 2. See also Public Reprimand; Reprimand, "10; SecRETARY of the 
Navy, 63. 

2. Jury duty. See File 21090-3; 20 Op. Atty. Gen., 618. See also Jury, 1. 

3. Leave of absence— Without pay. See Leave of Absence, 2, 13. 

4. Retired enlisted men. See Retired Enlisted Men, 3. 

5. Vaccination. See Vaccination. 

CIVIL ENGINEER CORPS. 

1. Promotions— Due to retirement of Civil Engineer Pearv. See Appointments, 13. 

2. Status. See G. O. 274, Nov. 1, 1881. 

CIVIL LIABILITY. See Legal Liability. 

CIVIL LIFE. 

1. Appointment as naval officer from— Constructive service for. See Constructive 

Service, 1. 

2. Clemency— Extended because officer having been appointed from civil life had been 

in service only two weeks. C. M. O. 59, 1904, 2. See also Clemency, 10. 

3. Marine officers. See Appointments, 20. 

CIVIL OFFICE OR EMPLOYMENT. 

1. Enlisted men, retired. See Retired Enlisted Men. 

2. Officers, retired. See Retired Officers. 

CIVIL OFFICERS. 

1. Certificates of— As evidence. C. M. O. 37, 1909, 8; 47, 1910, 4; 1, 1911, 4. See also 

Certificates, 3, 4. 5. 

2. Definition— A "pursuer" of a detective agency incorporated under the laws of New 

Jersey, while not a "civil officer," in the strict sense, is, nevertheless, such a person as 
contemplated by the act of February 16, 1909 (35 Stat., 621), and therefore entitled 
to make arrests of deserters. File 26516-38, J. A. G., Dec. 3, 1910, p. 6. See also De- 
serters, 2-6. 

CIVIL RESPONSIBILITY. See Legal Liability. 

CIVIL RIGHTS. See Deserters, 13, 14, 17-24; Desertion, 23-29; Dishonorable Dis- 
charge, 5, 6. 

CIVIL SERVICE. 

1. Civil service act. See Civil Service Act. 

2. Retired enlisted men. See Retired Enlisted Men, 3. 

3. Retired officer— Taking examination and accepting a clerical position. See Retired 

Officers, 9. 

CIVIL SERVICE ACT. 

1. Appointments under— The Attorney General has held it to be the function and duty 
of the Civil Service Commission to determine the eligibility of appointees to positions, 
rather than the officers making the appointments. File 5252-32, J. A. G., Jan. 26, 
1910, p. 5. 

CIVIL. WAR. See Civil War Service; Mark of Desertion, 1; Name, Change of, 16. 

CIVIL WAR CASES. 

1. Removal of mark of desertion. See Mark of Desertion, 1, 9. 
CIVIL WAR SERVICE. 

1. Certificate of discharge — Where records show that an enlisted man was appointed 
an acting third assistant engineer without being discharged from his enlistment, 
and that he served continuously as such enlisted man and acting officer until dis- 
charged from the Navy: Held, That a certificate of discharge should not be granted 
from his enlistment, as a statement of the man's service, as shown by the department's 
records, is all that is required by the Pension Office in acting upon claims for pensions. 
The former policy of fixing a fictitious date of discharge and issuing a certificate in 
cases of this character discontinued. File 26539-481. 



CIVIL WAR SERVICE. 79 

2. Chiefs of bureaus— Retired after Civil War service. See Bureau Chiefs, 8. 10. 

3. Naval Academy— A retired naval officer was a student at the Naval Academy during 

the Civil War; on January 7, 1907, the Court of Claims decided that he was entitled 
to retirement with the rank and pay of the next higher grade under section 11 of the 
personnel act (30 Stat., 1007), from which decision no appeal was taken by the Gov- 
ernment; on April 20, 1908, in another case, the Court of Claims held that an officer of 
the Navy who was a student at the Naval Academy during the Civil War was not 
entitled to the benefits of section 11. Under these circumstances, advised that the 
first-mentioned officer be not given the rank of rear admiral on the retired list. File 
27231-8, J. A. G., Jan. 25, 1910. See also File 19245-43, J. A. G., Mar. 7, 1912; Moser 
v U. S., Ct. Cls. 86; U. S. v Jasper, 38 Ct. Cls. 202, 40 Ct. Cls. 76, 43 Ct. Cls. 368. 

4. Official records— A dvised; That the service of a certain officer during the Civil War, 

except under his first appointment on board the U. S. S. Rhode Island, was as an act- 
ing assistant paymaster; that it is contrary to the policy of the department to alter 
official records; but that there would be no objection to placing the papers embodying 
this officer's claim with the other papers relating to his case in the files of the depart- 
ment. File 26510-225:1, J. A. G., June 10, 1911. See also Records of the Depart- 
ment, 4. 

5. Retired officer advanced for Civil War service— The Army practice has been to not 

commission anew those officers on the retired list who were advanced in rank therefor 
by the act of April 23, 1904 (33 Stat. 264). The naval practice has been the same since 
thepassageof the Actof June 29, 1906. File 26509-33, J. A. G March 24, 1910, p. 3. The 
department has held that such officer receives the rank and three-quarters pay of the 
higher grade, but there is no change in the officer's grade. File 26509-33, J. A. G., 
March 24, 1910, p. 4. The Personnel Act (Mar. 3, 1899, 30 Stat. 1007) provides that 
officers having had Civil War service may be commissioned without the consent of 
the Senate. The act of June 29, 1906 (34 Stat. 554) as amended by the act of March 3, 
1909 (35 Stat. 753) applies practically to only such officers as were retired prior to 
March 3, 1899. File 26509-33, J. A. G., March 24, 1910, p. 4. For purposes of retirement 
in next higher grade, student service at the Naval Academy during the Civil War 
does not count as service. File 19245-43, J. A. G. , March 7, 1912. 

6. Same— A retired officer of the Navy claimed the rank of the next higher grade on account 

of Civil War service, under section 11 of the act of March 3, 1899 (30 Stat., 1007), as 
amended by the act of June 29, 1906 (34 Stat., 554). While the records of the Navy 
Department did not disclose the service claimed, neither was there any evidence at 
hand to rebut the evidence offered by the claimant; in order that no injustice might 
be done the Secretary of the Navy referred the case to the Court of Claims for its finding 
of facts and conclusion of law. The court first found against the claimant, but new 
evidence being adduced set aside its former findings and reported that claimant had 
rendered the service claimed and was entitled to the rank of the next higher grade. 
Held, that, in the absence of evidence to the contrary, the findings and conclusion of 
the Court of Claims should be treated as final (Berger vV.S., 36 Ct. Cls., 243), and the 
necessary steps should be taken without delay to give claimant the advancement 
to which it now appears he is entitled. File 26266-311, J. A. G., Feb. 25, 1915; C. M. O. 
10, 1915, 13. 

CIVILIANS. 

1. Desertion— Civilians aiding enlisted men of the naval service to desert. See Deser- 

tion, 12. 

2. Military commissions— Trial by. See Military Commissions, 1. 

3. Retired list of officers — A civilian can not be appointed to the retired list. File 27231- 

67, J. A. G., Aug. 20, 1915. 

CIVILIAN COAL HANDLER. 

1. Death of— Court of inquiry record— Where sent. Ct. Inq. Rec. 6196. 

CIVILIAN COUNSEL. See Counsel, 15, 16. 

CIVILIAN DENTIST AT THE NAVAL ACADEMY. See Dental Surgeons, 7. 

CIVILIAN OUTFITS. 

1. Prisoners— On discharge. See Prisoners, 6. 

CIVILIAN WITNESSES. See Witnesses, 25-27. 
50756°— 17 6 



80 CLEMENCY. 

CLAIMS. See also Claims Against the United States. 

1. Against the Government. See Claims Against the United States. 

2. Household goods— Where an officer accepts free transportation of his household goods 

offered by the Government, he assumes any risks involved; the Government does 
not become an insurer, being a "carrier without hire. " File 5459, Sec. Navy, Jan. 8, 
1907. 

3. Influencing legislation — Attorney's claim for fees. See Debts, 18; Legislation, 2. 

4. Limitations upon claims. See File 9410; 2527-1903; 1370-1903. 

5. Officers, against— The department will not in any manner lend its aid to the enforce- 

ment of any claim against an officer which may be based in whole or in part upon 
services real or supposed alleged to have been rendered in violation of Navy Regu- 
lations, 1913, R-1517. File 13673-3192, Sec. Navy, Nov. 11, 1914. 

6. Payment of— Authority to make. See Aitditor for the Navy Department, 5. 

7. Reimbursement. File 4753-95. 

CLAIMS AGAINST THE UNITED STATES. See also Claims. 

1. Call for evidence — By Court of Claims. See Court of Claims, 1, 3. 

2. Officers' official duties— Section 5498, Revised Statutes, prohibiting officers of the Gov- 

ernment to act as attorneys for claimants or assist them in any manner in the prosecution 
of their claims against the Government, has no application to any action that may be 
taken by an officer "in discharge of his proper official duties." Therefore, advised, 
that the action of the Bureau of Navigation in furnishing extracts from records of 
enlisted men to the Commonwealth of Massachusetts is not In conflict with the 
above section of the Revised Statutes, even though such information may be indirectly 
obtained by claimants in connection with applications for pensions, ft is a question 
whether the Bureau of Navigation should continue to furnish such information in 
view of the uses made thereof by the Adjutant General's Department of Massachu- 
setts. File 16881-2, Sec. Navy, Mar. 30, 1910. 

3. Officer preparing arguments for an allottee— It is not part of the official duty of a 

pay officer in the Navy to prepare arguments in support of claim of allottee of an en- 
listed man and such action is expressly prohibited under penalty of fine and impris- 
onment by section 5498 of the Revised Statutes. File 26254-419, Sec. Navy, May 10, 
1910. See also Capt. Tyler's Motion, 18 Ct. Cls. 25; 16 Op. Atty. Gen. 478. 

4. Officer voluntarily paying obligation of United States — A naval militia officer who 

voluntarily pavs an obligation of the United States is not entitled to reimbursement 
from the Government. (Comp. Dec, Feb. 17 ; 1915, Appeal No. 24365, file 26254-1709.) 
In a reconsideration in this case May 22, 1915, it was held that . owing to exceptional cir- 
cumstances, reimbursement should'be allowed, applving 18 Comp. Dec. 299. See also 
4 Comp. Dec. 409; 6 Comp. Dec. 594; 8 Comp. Dec. 584; 11 Comp. Dec. 486; 12 Comp. 
Dec. 48. 

CLASSIFICATION TABLES. See Reduction in Rating, 42. 

CLEARED COURT. See Court, 16, 20-26, 126-128. 

CLEMENCY. 

1. Accused— Copy of record given to accused should not contain the recommendation to 

clemency. Accused may obtain such from the department after final action. File 
26504-96. See also Clemency, 47. 

2. Additional evidence— Warranting exercise of. File 26251-7219; G. C: M. Rec. 26427. 

3. Affidavits— The admission of an ex parte affidavit favorable to the accused does not 

invalidate the proceedings, and is no ground for clemency by the department; but 
otherwise if the affidavit is against the accused. File 1009-94. Scealso Affidavits, 1. 

4. Aptitude for the service. C. M. O. 58, 1892. 

5. American Indian— Clemencv extended because the accused was a full-blooded Amer- 

ican Indian. CM. O. 114, 1903, 4. See also Inddlns, 2. 

6. Assault, jocular— An assault in "jest" by the person committing the assault does not 

relieve that person from guilt of the offense of "assault" but may be considered as 
ground for recommendation to clemency. C. M. O. 8, 1911, 7. See also Assault, 9. 

7. Business procedure— Clemency granted because of lack of knowledge of business 

procedure. C. M. O. 23, 1909. 

8. Character, good or excellent— Clemency recommended because of excellent character. 

C. M. O. 96, 1895, 2; 104, 1895; 44, 1915. 

9. Circumstances of the case. C. M. O. 61, 1893; 80, 1894. 2; 59, 1904, 2; 12, 1911, 5. 

10. Civil life— In view of certain circumstances developed by the testimony adduced; 
and in consideration particularly of the fact that the accused was appointed as an 



CLEMENCY. 8 1 

officer from civil life, having been in the service, at the time of the occurrence, only 
about two weeks, favorable action was taken upon the recommendation to clemency, 
and the sentence was mitigated. This lenient action was taken by the department 
in the belief that at a time when the accused had enjoyed but little opportunity to 
become acquainted with the obligations, customs, and traditions of the service, he 
was betrayed, in a moment of heedlessness, into conduct which his sober judgment 
would unqualifiedly condemn. C. M. O. 59, 1904, 2. See also C. M. O. 31, 1887", 2. 

11. Commendatory letters. C. M. O. 54, 1892; 69, 1903, 2; 118, 1905. See also Com- 

mendatory Letters, 1; Evidence, 19. 

12. Copy of record— Given accused should not contain recommendation to clemency. 

See Clemency, 1, 47. 

13. Courts-martial — The law imposes on courts-martial duty to adjudge adequate sen- 

tences in cases of convictions, and where a court-martial adjudges a lenient sentence 
it encroaches upon the prerogatives of the reviewing authority by exercising clem- 
ency, as this power is vested by law, not in courts-martial, but in the reviewing 
authority. If the members of a court-martial consider that the circumstances in the 
case justify the exercise of clemency, their duty in the matter is limited by law to 
signing an appropriate recommendation to the revising power, stating on the record 
their reasons for so doing (A. G. N. 51). See Adequate Sentences, 4-19; Court, 17. 

14. Same — A recommendation to clemency is not an action by the court as a body, but 

by the individual members thereof. See Clemency, 35. 

15. Denied — Despite unanimous recommendation of members. C. M. O. 37, 1915, 1, 8-9; 

10, 1916; 20, 1916; 1, 1917. 

"While it is customary to observe a recommendation of this character, such course 
is not invariably pursued." File 6465-03, J. A. G., 1903, pp. 11-12. 

16. Department — Exercised clemency in accordance with recommendation of members 

of court. C. M. O. 2, 1887; 36, 1888; 38, 1888; 50, 1889; 60, 1889; 66, 1889; 4, 1890; 38, 
1890; 52, 1890; 56, 1890; 65, 1890; 25, 1909; 42, 1909; 12, 1911, 5; 19, 1912, 5; 21, 1912, 4; 
17, 1915; 23, 1915, 1, 3; 25, 1915, 3; 26, 1915. 

In view of the recommendation to clemency signed by one member the dishonorable 
discharge was held in abeyance. CM. O. 1, 1906, 2. 

"In accordance with the recommendation of the Bureau of Navigation, the recom- 
mendation to clemency is disapproved." C. M. O. 19, 1916, 3. 

17. Dictate or suggest — A recommendation to clemency should not assume to dictate, 

or to suggest, to the reviewing authority what mode or measure of clemency will 
properly be resorted to in the case, such as recommending that the sentence of the 
accused "be suspended during good behavior until the expiration of said sentence, 
and that in the meantime the accused be restored to duty." C. M. O. 19, 1912, 5. 

18. Drunkenness, voluntary— "Voluntary drunkenness does not afford any reasonable 

or good ground for the exercise of clemency." C. M. O. 8, 1911, 6. 

19. Same — Incapacity of accused due in part to physical incapacity— Not sufficient basis 

for exercise of clemency. See Drunkenness, 84. 

20. Evidence in extenuation — The department disapproved the case where the evidence 

in extenuation was inconsistent with the plea of "guilty" and a recommendation 
to clemency "in consideration of the evidence adduced in extenuation" was made 
by the members. C. M. O. 10, 1912, 4-5. See also Evidence, 51. 

21. Filipino— Clemency recommended because accused was a Filipino. See Code of 

Ethics. 

22. Finding — Recommendations to clemency should not be inconsistent with the find- 

ings of the court. C. M. O. 49, 1910, 17; 21, 1910, 4-6; 30, 1910, 5; 5, 1911, 4. Sec also 
Findings, 53. 

23. Form— The proper form for a recommendation to clemency is: "In consideration of 

we recommend * * *." 

In one case the members of a general court-martial signed a recommendation to 
"mercy." G. O. 52, Apr. 15, 1865. 

24. Gravity of offense— Accused not understanding. C. M. O. 23, 1894, 2; 78, 1894, 2. 

25. Inconsistent— Recommendation should not be inconsistent with findings or plea of 

"guilty" of accused. See Clemency, 20, 22; Findings, 53; Insanity, 38. 

26. Indian," American— Clemency extended because accused was a full-blooded American 

Indian. C. M. 0. 114, 1903, 4. Sec also Indians, 2. 

27. Diexperience— As a grounds for clemency. C. M. O. 67, 1892, 2; 41, 1893; 87, 1898; 

94, 1893; 26, 1894; 63, 1894; 28, 1S95, 2; 92, 1S95; 93, 1895; 102, 1896; 112, 1899; 59, 1904. 
2; 23, 1909; 25, 1909; 7, 1911, 13; 33, 1913; 37, 1915, 1, 8-9. 



82 CLEMENCY. 

28. Insanity. See Findings, 55; Insanity, 3-6. 

29. Limited service— Since graduation from Naval Academy. C. M. O. 41, 1891, 3. 

30. Long service— As grounds for clemency. C. M. 0. 1, 1893, 3; 60, 1893; 32, 1894, 3; 122, 

1897, 2. See also C. M. O. 20, 1916. 

31. Long time in confinement— Awaiting trial. C. M. O. 52, 1889; 30, 1892; 85, 1893. 

See also C. M. O. 28, 1916. 

32. Low order of intelligence — Displayed by accused on witness stand. C. M. O. 224, 

1902. 

33. Marital difficulties. C. M. 0. 1, 1916, 1. 

34. Medal of honor— Grounds for clemency. C. M. O. 2, 1902; 118, 1905. See also C. M. 

O. 34, 1916; File 26251-12117, Sec. Navy, Sept., 1916. See also Evidence, 19. 

35. Members — A recommendation to clemency is not an action by tbe court as a body, 

but bv the individual members thereof, and it should not be stated in the record that, 
"the court recommends," but that " We recommend." C. M. O. 21, 1910, 5; 28, 1910, 
4; 21, 1912, 4; 21, 1917. See also C. M. 0.4, 1913, 53. But see C. M. 0. 50, 1901: 3, 1908, 
2; 23, 1909; 49, 1910, 13; 10, 1916, 2; 11, 1916, 2, which are in error. 
Members should not dictate or suggest. See Clemency, 17. 

36. Mentally incapacitated — A rinding of "guilty" to fraudulent enlistment, but a 

light sentence imposed because the accused was "mentally incapacitated" when 
fraudulently enlisting, was held by the department to be utterlv inconsistent, and 
therefore disapproved the case. C.'M. O. 49, 1910, 12-13. See also Findings, 52,55. 

With reference to clemency granted because of "doubt as to the sound mental con- 
dition of accused," "mental disturbance/' "feeble, untrained mind," and "deficient 
in will power," see Insanity, 3-6. 

37. Ordered to attend a smoker— In view of the fact "that the accused [officer] was or- 

dered to attend a smoker on shore, a social function, the nature of such functions 
being recognized as more or less convivial occasions," and for other reasons, the sen- 
tence of the accused (officer) was mitigated. C. M. 0. 7, 1008, 2. See also Drunken- 
ness, 41. 

38. Same — But in a case where accused (officer) had been convicted of a similar offense 

previously, and "he made efforts not to go to the function that he had been ordered to 
go to ashore, feeling that it was to be a convivial occasion, and he was afraid of the 
result," the sentence of dismissal was carried into effect. C. M. O. 9, 1908. 

39. Pav— Forfeiture of pay should, in general, be remitted only as an act of clemency to 

accused. See Allotments, 6-7; Clemency, 53; Pav. 23. 

40. Personal relations— Existing between accused and shipmates. C. M. O. 5, 1903. 

41. Physical condition of accused— It is not within the province of general courts-martial 

to determine the physical condition of an accused and his ability to serve sentence. 
These are not matters for it to consider. The law makes it the duty of courts-martial 
in all cases of conviction to adjudge punishment adequate to the nature of the offense. 
(Art. 51. A. G. N.) This permits of no allowances being made because of a man's 
physical disability. C. M. O. 49, 1910, 12. See also C. M. O. 3, 1911; Court, 133. 

42. Same — Department granted clemency because health of accused was impaired from 

causes incident to the service. C. M. O. 1, 1893, 3. See also C. M. O. 127, 1896; 58, 
1898; 97, 1899. 

43. Prior punishment— Members of a court-martial should not recommend clemency 

because the accused was punished by his commanding officer for "this offense" for 
which he is undergoing trial bv general court-martial, when he was charged with 
several offenses. C. M. O. 7, 1914, 4. 

44. Probation— In certain cases the department in consideration of the recommendation 

to clemency of the members of courts-martial has placed the accused on probation. 
C. M. O. 42, 1909, 9; 12, 1911, 5; 19, 1912, 5. 

45. Provocation. C. M. 0. 126. 1897, 2; 54, 1898. 

46. Reasons for— After the sentence of a court has been decided on, it is competent lor any 

of its members to move that the accused be recommended to the clemency of the 
revising power. This recommendation is not to be inserted in the body of the sen- 
tence, but recorded, with the reason therefor, immediately after the signatures of the 
court and judge advocate to the sentence, and must be signed by the members con- 
curring in it. See C. M. 0.36, 1905, 3. 

" The reviewing and revising authorities, in order to properly weigh and determine 
a recommendation for clemency, should have as a matter of record the information 
on which the members based this recommendation; and courts should, therefore, see 
that evidence of previous good character, by oral testimony or by introduction of cur- 
rent enlistment record, is made a matter of record before a recommendation for clem- 
ency is made." Let. C. in C. At. Fleet, 636-14 (41), FO-C, May 20, 1914. 



CLEMENCY. 83 

47. Record— A recommendation to clemency should follow immediately after the signatures 

of court and judge advocate to the sentence. C. M. O. 21, 1910, 9; 23, 1910, 7. See 
also Clemency, 46. 

The copy of the record of proceedings furnished the accused should not contain the 
recommendation to clemency, if there be one. The same may be obtained from the 
department after final action is taken. File 26504-96, J. A. G., Nov. 19, 1910. 

48. Record of accused — The previous good character and reputation of the accused 

(officer) can not for a moment be regarded as a justification of his misconduct. It may 
be and is considered by the department in judging of his motive, but not in its con- 
demnation of his offense. C. M. 0. 107,1901, 2. 

49. Same — " Long and particularly excellent record ' ' of accused as a grounds for clemency— 

"It thus appears from the court's own statement that in arriving at its sentence in 
thiscase it was influenced by the 'long and particularly excellent record' " of the accused . 
"While the previous record of an accused may properly be regarded as a good 
reason for a recommendation to clemency, it can not be made the basis for an exercise 
of clemency by the court. This distinction does not always seem to be understood 
by officers serving as members of general courts-martial. The law requiring courts- 
martial to adjudge an adequate punishment in all cases of conviction and empowering 
members of the court to recommend the accused as deserving of clemency would be 
nullified if courts-martial were allowed to exercise clemency because of the previous 
good record of the accused when it is obvious that this is peculiarly a matter for the 
consideration of the convening authority in acting upon the sentence." C. M. O. 28, 
1913, 6-7. See also C. M. O. 58, 1892. 

50. Same — Clemency is recommended because of the excellent record of the accused. 

C. M. O. 23, 1915, 3; 43, 1915; 44, 1915. See also Evidence, 19. 

51. Same — "Long and honorable service, both during the Spanish "War and since that 

time," as a ground for clemency. C. M. O. 15, 1910, 6. See also C. M. O. 77, 1906. 

52. Same — " In view of the limited conversation which sustains the gravamen of the first 

specification of the first charge, and of the trying circumstances under which this 
conversation occurred, and in view of the long service and excellent character of the 
accused," as a ground for clemency. C. M. O. 20, 1912, 4. 

53. Remission of loss of pay — Imposed by a summary court-martial should be done 

"only as an act of clemency toward the accused." File 26287-560. See also File 
26251-7004:2. 

The department has held, in considering a question of remitting the loss of pay 
imposed by a court-martial, that in general it should be done only as an act of clem- 
ency toward the accused. (File 26237-560, Sec. Navy, Aug. 3, 1910.) File 26251- 
7004:2, Sec. Navy, March 31, 1913; CM. O. 22, 1915, 9. See also Allotments, 6, 7; 
Clemency, 39. 

54. Revising authority — Will not exercise clemency when court adjudges inadequate 

sentence. C. M. O. 96, 1896, 2; 131, 1901; 67, 1902, 2; 69, 1903, 3; 43, 1906, 3; 101, 1906; 
42,1909,8; 15,1910,6. 

55. Revoking recommendation to clemency— A court in proceedings in revision 

revoked its recommendation to clemency. C. M. O. 37, 1909, 7. 

56. Second enlistment — The court should not be influenced in its findings by the fact 

that the accused was completing his second enlistment in the naval service with a 
good record for his current enlistment. Such fact should not be considered by the 
court in its findings unless properly introduced in eviden ce, but would be good ground 
upon which to base a recommendation to clemency. C. M. O. 30, 1910, 10. 

57. Sentence— Court by adjudging inadequate sentence assumes prerogatives of con- 

vening authority by thus exercising clemency. C. M. O. 67, 1902, 2; 69, 1903, 3; 43, 
1906, 3; 101, 1906; 42, 1909, 8; 15, 1910, 6; 7, 1912, 3; 8, 1912, 3; 16, 1912, 3; 1, 1913, 7: 
9, 1913, 3; 16, 1913, 3; 28, 1913, 6; 43, 1915, 2; 44, 1915, 2. 

58. Same — A recommendation was based on the grounds, that the accused " is now serving 

a sentence of two and one-half years on a similar charge." C. M. 0. 19, 1912, 4. 

59. Short time in service— C. M. O. 59, 1904, 2. See also C. M. O. 31, 18S7, 2. 

60. Suspension from duty— By commanding officer not a basis for clemency. C. M. O. 

7, 1914, 13. 

61. Trial, awaiting— For 45 days. C. M. O. 224, 1902. 

62. U. S. S. "Merrimac"— Member of crew. C. M. O. 69, 1904, 2; 32, 1905; 20 J. A. G . 289. 

Jane 5, 1002. See also Merrimac, U. S. S. 

63. U. S. S. "Yosemite" at Guam— Member of crew. C. M. O. 73, 1905, 1. 

64. Unanimous recommendation to clemency —Made by the full council of Aids to 

the Secretary of the Navy C. M. 0. 17, 1913, 2. 



84 CLEMENCY. 

65. Same— Clemency granted in view of the unanimous recommendation. C. M. O. 23, 

1915; 25. 1915. 

66. Saine — Clemency denied, despite unanimous recommendation of members. C. M- O. 

37, 1915, 1, 8-9; 10, 1916; 20, 19i6. 

67. War record— In view of excellent war record of accused, as a volunteer officer, that 

brought him into the regular service and the excellent manner in which he had com- 
manded his ship, the convening authority exercised clemency. C. M. O. 41, 1892. 

68. Youth— Clemency recommended because of the vouth of accused. C. M. O. 59, 1904, 2; 

23, 1909; 21, 1910, 12; 38, 1890; 41, 1891, 3; 58, 1892; 67, 1892, 2; 41, 1893; 61, 1893; 87, 
1893; 89, 1893; 94, 1893; 23, 1894, 2; 26, 1894; 80, 1894, 2; 12, 1895, 2; 92, 1895; 93, 1805; 
104, 1895; 102, 1896, 2; 58, 1898; 34, 1899; 112, 1899; 25, 1909; 21, 1910, 12; 7, 1911, 14; 12, 
1911,8. 

69. Same — In consideration of the almost unanimous recommendation to clemency of the 

court and the youth and inexperience of the accused the department remitted the loss 
of 10 numbers. C. M. O. 25, 1909. 
70 Same — The accused was over 20 years of age when he killed a shipmate, was charged 
with murder and foimd guilty of manslaughter, and the members of the court recom- 
mended him to the clemency of the revising authority, on account of youth and other 
grounds. C. M. 0. 12, 1911, 8. 

71. Same— The accused was over 24 years of age when he assaulted and wounded another 

and was drunk on post, yet the members of the court recommended him to clemency 
because of his youth. C. M. O. 7, 1911, 14. 

72. Same— The members of the court recommended the accused in consideration of his 

youth, to the clemency of the revising authority. C. M. O. 21, 1910, 12. 

CLERICAL ERRORS. 

1. Charges and specifications— Correction of. See Charges and Specifications, 33-37. 

2. Record— Correction of clerical errors on revision. See Record of Proceedings, 26, 27. 

3. Sentence — Where the word "to" was omitted before the words "be paid," in the sen- 

tence of a naval court-martial, being a manifest clerical error, under ordinary circum- 
stances the record would not be required to be returned to the court, but the record 
being returned for other reasons, attention was called thereto. File 288-97. 

CLERKS. 

1. Leave of absence without pay— May be granted in some cases. See Leave of 
Absence, 13. 

CLERKS, COMMANDANT'S. See Death Gratuity, 11. 

CLERKS IN OFFICE OF JUDGE ADVOCATE GENERAL. 

1. Copies— Of officers' records. C. M. O. 29, 1915, 8. 

CLERKS OR REPORTERS OF GENERAL COURTS-MARTIAL. 

1. Closed court— Should not be present during closed court. C. M. O. 19, 1915, 10. 

2. Oath— Should be sworn by the judge advocate, not by the president of the court . C . M. 

0.135,1897,2. 

3. Record of proceedings — Should contain a notation that the clerk entered, and it is not 

sufficient to merely note that the clerk was sworn. C. M. O. 16, 1912, 3. 

4. Same — If clerk is only a copyist and does not record the evidence he need not be sworn. 

C. M. O. 135, 1897, 2. Note: Clerks shoidd always be sworn. 

CLERKS, PAY. See Pay Clerks amd Chief Pay Clerks. 

CLERKS, PAYMASTER'S. See Paymaster's Clerks; Paymaster's Clerks, Marine 
Corps. 

CLERKS, TO ASSISTANT PAYMASTERS, UNITED STATES MARINE CORPS. 

See Paymaster's Clerks, Marine Corps. 

" CLIPS." 

1. Records— Use of "clips" prohibited, in binding naval court-martial records of proceed. 
ings. See Binding of Court Martial Records, 1. 

CLIPPING HAIR OF PRISONERS. 

1. Awaiting trial — Not looked on with favor by department. See Prisoners, 4. 

" CLOSED COURT." See Court, 16, 20-26, 126-128. 






COAST GUARD. 85 

CLOTHING. 

1. Prisoners' useless clothing— Disposition of— Sold at auction. File 27222-41, Sec. 

Navy, July 1, 1916. 

2. Sale of— Liability of civilians for purchase of. File 26516-49, J. A. G., June 13, 1911. 

CLOTHING AND SMALL STORES. 

1. Detentioners, issued to — Chargeable to his accounts. See Detentioners, 2. 

CLOTHING OUTFITS. 

1. Right to — An enlisted man of the Navy who enlisted as landsman July 15, 1901, was 

honorably discharged on account of expiration of enlistment July 15. 1905, reenlisted 
as bugler, September 10, 1914, claimed that he was not furnished an outfit of clothing 
on his first enlistment, and made a claim for same under the provisions of the Naval 
Appropriation Act of June 30, 1914, which provides that the Secretary of the Navy 
is authorized to issue a clothing outfit to all enlisted men serving in their second enlist- 
ment who failed to receive an outfit of the value authorized by law on their first enlist- 
ment, etc. 

The laws in effect at the time of this man's first enlistment were contained in the 
act of March 1, 1889 (25 Stat. 781), and the Naval Appropriation Act of March 3, 1901. 
The first of these acts provided for furnishing a clothing outfit to "apprentices," and 
the latter act contained two paragraphs on the subject, the first making appropriation 
for outfits for "naval apprentices" and "hospital apprentices" and the second making 
appropriations for " outfits for 5,000 landsmen under training for seamen, at $45 each." 
As this man did not enlist originally as an apprentice he is not entitled to the outfit 
authorized in such oases; neither was he a landsman under training for seaman. He 
could not be held entitled to an outfit under the act of July 1, 1902, (32 Stat. 664), 
which enlarged the terms of prior laws on this subject, as it was passed approximately 
one year after his having enlisted, and the purpose of this law as held by the Attorney 
General and the Comptroller of the Treasury was to give a bounty "as an inducement 
for the services to be rendered, and not as compensation for such services." (11 Comp. 
Dec. 193, 199.) This man is therefore not entitled to a clothing outfit under the Act of 
June 30, 1914 (38 Stat. 396). File 26837-5, J. A. G., Dec. 30, 1914; C. M. O. 6, 1915, 8. 

2. Same—Under the provisions of the naval appropriation act of March 3, 1915 (38 Stat. 

940). File 26837-7, J. A. G., Jan. 15, 1916. 

COAL BARGE. 

1. Capsized.— And cargo lost. C. M. O. 7, 1915. 

COAL HEAVER. 

1. General court-martial— Tried by. C. M. O. 59, 1880; 36, 1886. See also C. M. O. 28, 
1890, 2. 

COALING SHIP. 

1. Enlisted man killed. — Struck by bag while coaling ship and killed. See Line of Duty 
and Misconduct Construed, 15. 

COAST AND GEODETIC SURVEY. See also Charts. 

1. Chart— No. 243. C. M. O. 31, 1916. 

2. Service in— As naval service. File 26254-550. 

COAST GUARD. See also Revenue-Cutter Service. 

1. Confinement of enlisted men— There is no legal objection to granting a request of 
the Treasury Department that enlisted men of the Coast Guard be confined on the 
receiving ship "pending disposition of charges against them." As stated in a some- 
whatsimilar connection concerning the "safekeeping" on board a receiving ship of 
certain civilian witnesses for the Department of Justice, "the attached papers do not 
present 'questions involving points of law concerning the personnel" 'proceedings in 
the civil courts in * * * cases concerning the personnel as such,' nor any other 
question under the cognizance of the Judge Advocate General, under the present 
regulations." (File 26276-60; Bu. Nav. File 2824-295.) File 7018-487, J. A. G., Oct. 
7, 1916. See also File 1778, May 25, 1905; 7018-487, Sec. Navy. Nov. 13, 1916. De- 
partment refused above request. File 7018-487, Sec. Navy, Nov. 13, 1916. 

2. Medals of honor. See Medals of Honor, 1, 3. 

3. Transfer of naval vessel to. See Revenue Cutter Service, 2. 

4. Witnesses. See Coast Guard, l; Witnesses, 27. 



86 COLLISION. 



COCAINE. 

1. Death, of enlisted man— An enlisted man died under cocaine administered by naval 

surgeon as a local anaesthetic. C. M. 0. 10, 1915, 8. See also Line of Duty and Mis- 
conduct Construed, 63. 

2. General court-martial— Enlisted man tried by general court-martial for being under 

the influence of cocaine. C. M. O. 42, 1915, 4. 

3. Unfit lor service— In a case where an enlisted man was convicted of using cocaine and 

sentenced to confinement and loss of pay, the convening authority was informed 
that the department does not consider the retention of such a person in the naval 
service desirable and it was deemed preferable that the sentence should provide for 
discharge in order to avoid action by the department. File 26287-224. 

CODE. See Army, 1; Articles of War; Criminal Code. 

CODE OF ETHICS. 

1. Clemency— Amone: other reasons for recommending clemency it was stated that the 
accused "is of an alien race [Filipino] and lived for a greater portion of his life under 
a code of ethics differing from our own." In considering the case the department 
remarked: "That in order that such a code of ethics may not be introduced into the 
naval service of the United States it would appear that the finding should have been 
in accordance with the laws of this country, and that a sentence in some measure 
commensurate with the offense should have been adjudged. C. M. O. 12,1911, 5. 
See also Clemency, 21. 

COLLATERAL FACTS. 

1. Enlistment record — As proof of desertion. See Reports of Deserters Received 

on Board, 4. 

2. Evidence— See Evidence, 25; Reports of Deserters Received on Board, 4. 

3. Log— Extract from log. See Collision, 8; Evidence, 25. 

COLLECTING AGENCY. 

1. Government as. See Debts, 1, 16; Pay, 71. 

COLLISION. 

1. "Alexander," U. S. N. A. See Collision, 10. 

2. Azov — For papers concerning the collision between the Chicago and the A zov off Antwerp, 

see File 4290-99; 2068-99. 

3. Board— The board to inquire into circumstances of a collision should give the captain 

and crew of the vessel in collision with a United States ship, a hearing. File 5370-93, 
J. A. G., Dec. 30, 1893. 

4. Chicago — For papers concerning the collision between the Chicago and the Azov off 

Antwerp, see File 4290-99; 2068-99. 

5. Damages, slight. See Collision, 7. 

6. Danger need not be considered— "Nerve" on the part of commanders of torpedo 

vessels is a prime requisite and there are times in the handling and maneuvering of 
these vessels, particularly when acting together and demonstrating the capabilities 
of their vessels, when the chances of collision should not deter an officer from attempt- 
ing the full development of the maneuver. C. M. O. 5, 1906. But see Navigation", 
80, 88. 

7. Department of Justice — Notwithstanding the fact that the damages suffered by naval 

vessel, as the result of a collision, is slight, the Department of Justice will take cog- 
nizance of the matter, and instruct the United States attorney to bring suit against a 
private vessel responsible for the loss. File 2337-97; 199-97. 

8. Evidence to prove — In court-martial proceedings against the commanding officer of a 

naval vessel for collision with a merchant schooner, testimony was admitted (extract 
from log of naval vessel) that on the trip immediately succeeding the collision the 
naval vessel passed in one watch two unknown merchant schooners exhibiting no 
lights of any kind, or at least not showing the lights required by the rules of the road. 
Held: That this testimony was inadmissible. It is not sufficient to prove a custom, 
and it does not show anvthing as to the lights actually carried by the merchant schooner 
with which the naval vessel collided. C. M. O. 38, 1905. See also Evidence, 25. 

9. Same — The record in this case shows that testimony was admitted to the effect "that 

it was a matter of common report on the Culgoa subsequent to the collision with the 
Wilson & Hunting, that the latter was in the habit of having her lights ready but not 
lit. " This testimony should have been excluded as hearsay. C. M. 0. 38, 1905, 2. 



COLLISION". 87 

10. Foreign countries— In the case of the U.S.N. A. Alexander, in which themaster was 

sued by the owners of a Chinese junk, the British Supreme Court at Hong Kong held 
that the Alexander was a public vessel, and forbade the owners of the junk to secure a 
trial of the merits in the British courts of the colony. File 4729-14, Sept., 1906. 

11. Hearing— Board investigating collision should give captain and crew of vessel in col- 

lision with Government vessel a hearing. See Collision, 3. 

12. " Inevitable accident"— Defense of in a collision— " To admit of that defense [inevi- 

table accident] it must appear that the danger was not to be apprehended, or, if it was 
liable to arise, that a proper watch was kept beforehand, and seasonable precaution 
taken against such a liability, and that reasonable skill was used when danger arose." 
(The Columbia, 48 Fed. Hep., 325.) C. M. O. 4, 1914, 9. See also Collision, 17; 
Officer of the Deck; File 7893-03, J. A. G., Sept. 22, 1903, p. 6; 13 J. A. G. 101. 

13. Merchant snip — Enlisted man, while on leave of absence, was drowned in collision 

of merchant vessels. See Line of Duty and Misconduct Construed, 29. 

Commanding officer and officer of the deck tried in joinder for collision with a mer- 
chant ship. See Joinder, Trial in, 5. 

14. Naval Militia — Where a vessel had been turned over to the Ohio Naval Militia at the 

navy yard, New York, and while en route to Toledo, Ohio, in charge of officers and 
men of the Naval Militia, damage was done to the cables of the Western Union Tele- 
graph Company, it was held that no liability existed on the part of the Navy Depart- 
ment. File 8100-04, J. A. G. 

15. " Nerve"— On part of torpedo-boat commanders. See Collision, 6. 

16. Ohio Naval Militia. See Collision, 14. 

17. Precautions to avoid collision— Required to be "timely" or seasonable— " Precau- 

tions must be seasonable in order to be effectual, and if they are not so and a collision 
ensues in consequence of the delay, it is no defense to allege and prove that nothing 
could be done at the moment to prevent the disaster, or to allege and prove that the 
necessity for precautionary measures was not perceived until it was too late to render 
them availing. Inability to avoid a collision usually exists at the moment it occurs, 
but it is generally an easy matter, as in this case , to trace the cause to some antecedent 
omission of duty on the part of one or both of the colliding vessels." (The Teutonia, 
23 Wall., 77.) (See also City of New York, 147 U. S., 72; Elizabeth Jones, 112 U. S., 514, 
The Sea Gull, 23 Wall., 165.) 

It is not inevitable accident, as was well remarked by the learned judge in the case 
of the Juliet Erskine (6 Notes of Cases, 634), where a master proceeds carelessly on his 
voyage, and afterwards circumstances arise, when it is too late for him to do what is 
fit and proper to be done. He must show that he acted seasonably, and that he did 
everything which an experienced mariner could do, adapting ordinary caution, and 
that the collision ensued in spite of suGh exertions. Unless the rule were so, it would 
follow that the master might neglect the special precautions which are often necessary 
in a dark night, and when a collision had occurred in consequence of such neglect he 
might successfully defend himself upon the ground that the disaster had happened 
from the character of the night and not from any want of exertion on his part to prevent 
it. (Union Steamship. Co. v. N. Y. & Va. Steamship Co., 24 How. , 307. ) 

"To admit of that defense [inevitable accident] it must appear that the danger was 
not to be apprehended, or, if it was liable to arise, that a proper watch was keptbefore- 
hand, and seasonable precaution taken against such a liability, and that reasonable skill 
was used when danger arose." (The Columbia, 48 Fed. Rep., 325.) 

"Precautions must be seasonable to be effectual; and if not seasonable, it is no defense 
that nothing could be done at the moment to prevent the disaster." (Southern By. 
v. U. S., 45 Ct. Cls., 322.) C. M. O. 4, 1914, 8-9. 

18. Same— From the evidence adduced before the court of inquiry as well as before the 

court-martial, the department is satisfied that the Wilson and Hunting, the schooner 
struck by the Culgoa, was sailing without her starboard side light burning, in viola- 
tion of the rules of the road; that if that light had been binning it would have been 
seen and noted on the Culgoa, and that the collision would not have occurred. Con- 
curring to that extent in the finding of the court, the department is assured that the 
disaster was due to the fault of the schooner. 

Nevertheless, it appears from an examination of the testimony given before the 
general court-martial by the accused ollicer himself, that, the night in question 
being dark with a clear atmosphere, a white light was reported at sea heaving "almost 
exactly two points on the port bow;" that the commanding officer, who was on the 
bridge at the time, was in doubt as to the distance and course of the vessel carrying 
this light; that "it was absolutely impossible to t;«ll whether she was four hundred 



88 COLLISION. 

yards away or ten miles,'' and that notwithstanding this uncertainty the speed of the 
Culgoa was not slackened or arrested, nor was her course changed until too late to 
avoid collision. C. M. O. 33, 1905. 

19. Same— In promulgating the proceedings in this case it is deemed proper to emphasize 

the rule that when a source of possible danger is reported, and pending the determina- 
tion of its precise character, the officer in command of a naval vessel should, unless 
precluded from so doing by some paramount consideration, immediately give precau- 
tionary orders. In cases of this character doubt should be resolved on the side of 
safety. C. M. O. 38, 1905, 2. 

20. Same — The evidence showed that a red light was sighted by the accused about one-half 

point off his port bow at about eight minutes before the collision occurred. The 
department stated " While the accused was vigilant and apparently took precautions 
which he considered safe in regard to passing the light, it is evident that his judgment 
was at fault with regard to the distance of the light when first sighted and that he failed 
to take proper precautions to satisfy himself with regard to the light, by taking a 
bearing on it, or by maneuvering his ship so that a collision would have been impossi- 
ble. C. M. O. 27, 1908. 

21. Public vessel. See Collision, 10. 

22. Rescue — If a United States ship collides with a merchant vessel, it is the duty of the 

commanding officer to ascertain the results of such collision, particularly the extent 
of the injury, if any, sustained by such merchant vessel, and whether she is so injured 
as to need assistance for her further navigation, or to ensure her safety or the safety of 
the lives of her officers, crew, and passengers, and to render such assistance, if needed, 
and for these purposes to remain, if practicable, in the vicinity a sufficient length of 
time to ascertain the results of such collision and to render such assistance if needed. 
C. M. O. 43, 1883. 

23. Responsibility of commanding officer. See Collision, 19; Commanding Officers, 

38; Navigation, 14-19, 82. 

24. Torpedo boats. See Collision, 6. 

25. U. S. N. A. " Alexander." See Collision , 10. 

COMITY. See Civil Authorities, 8, 16; Words and Phrases. 

COMMAND. See also Precedence. 

1. Boatswains and chief boatswains. See Command, 21. 

2. Carpenters and chief carpenters. See Command, 21. 

3. Engineer officers— Not restricted by law to engineering duties. See Command, 14. 
. 4. Same— On board ship. See Command, 19. 

5. General court-martial— Of an assistant engineer which involved a controversy 

between the line and staff officers of the Navy as to the limitation of authority in 
matters of command. See Command, 19. 

6. Gunners and chief gunners. See Command, 21. 

7. Line officers — Exercise military command. See Command, 18, 19. 

8. Machinists and chief machinists. See Command, 21. 

9. Same— Before machinists can be held entitled to succession to command, something 

positive " to that effect should be produced from the personnel act or from the general 
nature of their duties or elsewhere." File 17789-15, J. A. G., Dec. 13, 1909, p. 3. 

10. Same — It is not at all evident that because chief machinists and machinists are 

assistants to line officers, such fact qualifies them to exercise or succeed to command 
outside of the engineer department. File 3980-629, J. A. G., July 13, 1911, p. 3. 

11. Same— With reference to the exercise of military command by chief machinists and 

machinists, it was held that nothing sufficiently positive has been produced from the 
personnel act or from the general nature of their duties or elsewhere,_ to warrant the 
suggested cancellation of the recent changes made in Navy Regulations, 1909, R-28 
(3). [See Navy Regulations, 1913, R-1013 (3)] by "Changes in Navy Regulations No. 
15," and that the presumption against the exercise of the right to command has not 
been overcome, and that the above-mentioned change in the regulations is not illegal. 
File 3980-629, J. A. G., July 13, 1911. See also Command, 21. 

12. Marines— When afloat in battalion or separate organization. See Jurisdiction, 75, 76. 

13. Medical officers — Over pay officer on a hospital ship. See Hospital Ships, 1, 3. 

14. Navy yards— Succession to, in temporary absence of commandant— In a navy yard, 

the captain of the yard held a commission as captain on the active list dated March 3, 
1911; the engineer officer of the yard was a retired officer holding a commission ap- 
pointing him a captain on the retired list to date from June 30, 1910 (not restricted by 
law to engineering duty). Held, That during the temporary absence of the com- 
mandanl ofsaidna\ y yard, the retired officer should succeed to command, rather than 



COMMAND. 89 

the captain of the yard. File 26806-73, J. A. G., Sept. 20, 1911. See also File 13559-17, 
J. A. G., Dec. 15, 1915: C. M. O. 49,1915,22; File 13559-17:1, Sec. Navy, June 19, 
1916; 3S09-6402, J. A. G., June 12,1916; 26253-4601:1, J. A. G., May 13,1916; Navy 
Regulations, 1913, R-3904. 

15. Same— In the absence of the commandant the line officer next in rank, not restricted 

by law to the performance of engineering duties, shall become the acting commandant 
and shall exercise, for the time being, the authority of the commandant, both ashore 
and in respect to ships in commission at the yard, as prescribed in article R.-3910. 
(R-3904.) See File 3311-04. See also Commandants of Navy Yards and Naval 
Stations, 2. 

16. Pharmacists and chief pharmacists. See Command, 21. 

17. Sailmakers and chief sailmakers. See Command, 21. 

18. Staff— The staff is subordinate to line in matters of command. G. 0. 87, Sept. 7, 1808. 

19. Same — In a case where an officer was tried by general court-martial for offenses which 

involved a controversy between the line and the staff, the department stated in part: 
In view of the position assumed by the defense, in certain interrogatories proposed to 
be put to the members of the court, implying a controversy between the line and staff 
officers of the Navy as to the limitation of authority in matters of command, it is 
deemed proper to state that the evidence adduced upon the trial shows that the offense 
committed, "disobedience of the lawful order of his superior officer," was clearly a 
violation of the express regulation requiring engineers on duty to conform to the 
orders of the officer of the deck, who, as the representative of the commanding officer 
of the vessel, is entitled to obedience from all officers of whatever rank, whether of line 
or staff. C. M. O. 67, 1892, 1-2. 

20. Succession to. See Command, 9, 10, 11, 14, 19, 21. 

21. Warrant officers — Chief boatswains, chief gunners, chief machinists, boatswains, 

gunners, and machinists are classed as line officers of the Navy; chief carpenters, 
chief sailmakers, chief pharmacists [chief pay clerks], carpenters, sailmakers [pay 
clerks], and pharmacists, as staff officers. So far as succession to command or suc- 
cession to duties aboard ship outside the engineer department are concerned, chief 
machinists and machinists are restricted to the performance of engineering duty only. 
(R-1013 (3) ). See Command, 11. 

COMMANDANTS OF NAVY YARDS AND NAVAL STATIONS. 

1. Acting commandant — An officer duly appointed to act as commandant and governor 

of an insular possession of the United States is, and while so serving, entitled to all 
the honors due to that position. File 4451, March 27, 1906. 

2. Death of commandant — Where, upon the death of the commandant of a naval sta- 

tion, wh® was also governor, a naval officer, junior to a marine officer present, succeeds 
in command [Navy Regulations, 1905, R-1682 (Navy Regulations, 1913, R-3904)], he 
should also succeed as acting governor. File 3311-04. 

3. Law— Commandants responsible that law is observed. C. M. O. 31, 1915, 16. 

4. Senior officer present— The commandant of a navy yard or naval station, or the 

officer acting in his absence, is the senior officer present for all purposes within the 
sphere of the command, with full authority as such, including review of summary 
courts-martial. File 2969-04, J. A. G. But see Act of August 29, 1916, (39 Stat. 586), 
which modifies this; Summary Courts-Martial, 21, 22. 

5. Succession to command— In temporary absence of commandant. See Command, 14 

COMMANDANT, NAVY YARD, PHILADELPHIA, PA. 

1. Responsible— That persons under his command observe law. C. M. O. 31, 1915, 16. 
See also Sunday Laws, 1. 

COMMANDANT, NAVY YARD, WASHINGTON, D. C. 
1. Government Hospital for the Insane — Allowances for prisoners and patients at;. 

C. M. O. 22, 1915, 8. See also Government Hospital for the Insane, 2. 

COMMANDANT, U. S. MARINE CORPS. See Marine Corps, 47-50. 

COMMANDANT'S CLERKS. 

1. Death gratuity. See Death Gratuity, 11. 

COMMANDER IN CHIEF OF FLEET. 

1. Court-martial orders— Publishing of. See Court-Martial Orders, 12. 13. 

2. Examining boards -Power to change. See Naval Examining Hoards, 4. 

3. General courts-martial -May convene. See Convening Authority, 27. 

4. Summary courts-martial— Power to direct reconvening of. See Reconvening, 16. 



90 COMMANDING OFFICERS. 

COMMANDER OF CRUISER SQUADRON, AND COMMANDER IN CHIEF, 
DETACHED SQUADRON, UNITED STATES ATLANTIC FLEET. 

1. Courts' of inquiry— Convening of. C. M. O. 6, 1915, 9. See also Convening Au- 

thority, 28. 

2. General courts-martial— Convening of. C. M. O. 6, 1915, 9. See also C. M. O. 14, 

1910, 17; 17, 1915; 40, 1915; 4G, 1915; 48, 1915; Convening Authority, 28. 

COMMANDING OFFICERS. See also Officer?. 

1. Absence from station and duty without leave— Commanding officers charged 

with. C. M. O. 34, 1S99; 19, 1915. 

2. Arrested by civil authorities— Where a commanding officer, arrested by the civil 

authorities, fails to make any report whatever of his whereabouts, either to his imme- 
diate superior or to the Secretary of the Navy, he must be held responsible for his 
resulting unauthorized absence and neglect of duty, notwithstanding the fact that, 
as in the present case, he may be acquitted by the civil courts when tried. CM. O. 

19. 1915, 9. 

3. Articles for the Government of the Navy— The commanding officer shall cause the 

Articles for the Government of the Navy to be hung up in some public part of the 
ship and read once a month. A commanding officer was tried by general court- 
martial for neglecting to observe this provision of the law. C. M. O. 29, 1890, 8. 

4. Same— Commanding officer tried by general court-martial for violating various pro- 

visions of. C. M. O. 29, 1890. 

5. Authority and precedence of. See G. O. 194, Aug. 2, 1875. 

6. Authority of. See Commanding Officers, 31, 32, 33. 

7. Battle — General rule to observe. See Battle, 2. 

8. Carrying gold. See Gold, 1. 

9. Civil authorities— Arrested by. See Commanding Officers, 2. 

10. Same— Delivery of enlisted men to. See Civil Authorities; General Order No. 

121, September 17, 1914. 

11. Collisions. See Collision. 

12. Confessions to. See Confessions, 9. 

13. Consular officers— Orders to commanding officers by diplomatic and consular offi- 

cers. See Diplomatic Officers, 2. 

14. Court-martial, not a— The commanding officer of a naval vessel, in imposing pun- 

ishments, is not a court-martial. C. M. O. 7, 1914, 8; 6, 1915, 8-9. See also Com- 
manding Officers, 3l; Jeopardy, Former, 3; G. C. M. Rec. 13370. 

15. Crew— Cruel and unusual treatment. Commanding officer tried by general court- 

martial for. C. M. O. 29, 1890, 2-3. 

16. Criticism of— A commanding officer was censured by the department for failing and 

neglecting to notifv the pay officer that an enlisted man had been declared a deserter. 
File 26254-2038:1, Sec. Navy, July 20, 1916. Sec also Commanding Officers, 27, 39. 

17. Cruelty to crew— Tried by general court-martial. C. M. O. 29, 1S90. 

18. Deck courts— Commanding officer as deck court officer. See Deck Courts, 7, 10, 14. 

Convening of. See Deck Courts, 7, 10; Summary Courts- Martial, 22. 

19. Discipline— Commanding officer is charged with the discipline of his command. File 

25675-9-10-11, Sec. Navy, Oct. 28, 1915. See also Criticism of Courts-Martial, 36. 
Laxness of discipline. C M. O. 4, 1911, 2, 5. 

20. Drunk— While on shore in a foreign port— Tried by general court-martial. C M. O. 

18. 1916. See also Drunkenness, 14. 

21. Drunk on duty. C. M. O. 33, 1889, 3; 19, 1913. Sec also Drunkenness. 14. 

22. General courts-martial — The commanding officer of a naval vessel is not empow- 

ered to convene a court-martial for the trial of an officer under his command. C. M 
0.7,1914,10. 

23. Gold— Transportation of, on a naval vessel. See Gold, 1. 

24. Insubordinate. C. M. O. 4, 1911, 2, 5S. 

25. Intoxicated. C. M. O. 33, 1889, 3; 18, 1916. See also Drunkenness, 14. 

26. "Nerve"— On part of commanding officers of torpedo vessels. See Collision, 6. 

27. Offenses — Commanding officer criticised for not punishing accused himself instead of 

recommending trial by general court-martial. The inadequate sentence was caused 
by the negligence of the commanding officer in not taking proper disciplinary action 
at time ohense was committed. C. M. O. 46, 1910, 1. See also Commanding Offi- 
cers, 39. 

28. Power of. See Commanding Officers, 33. 

29. Precautionary orders— When possible source of danger is reported. C M. O. 38. 

1905, 2. See also COLLISION, 19. 



COMMANDING OFFICERS. 91 

30. Precedence — Over all under their command. G. 0. 194, August 2, 1875. 

Commanding officers of vessels of war and of naval stations shall take precedence 
over all officers placed under their command. File 3930-1075, J. A. G., April 9, 1915. 

31. Punishments by— Status of commanding officers in imposing punishments — The 

department has fully considered the status of a commanding officer in imposing 
punishments, and held that he does not act as a court-martial, that his investigation 
of an offense is in no sense a trial, that his finding is not a conviction or acquittal, and 
that the punishment which he imposes is not a sentence. (C. M. O. 7, 1914; 31, 1914.) 
File 26251-6297:9, Sec. Navy, Dec. 28, 1914; C. M. O. 6, 1915, 8-9. See also Command- 
ing Officers, 14; Jeopardy, Former, 3. 

The commanding officer of a naval vessel in punishing enlisted men occupies a 
"quasi judicial" and not a "purely judicial" position. C. M. O. 7, 1914, 8. 

32. Same— Too many punishments by commanding officer— The department has noticed 

with regret, the frequency of punishments inflicted upon the enlisted men on board 
some of the ships now in commission— no one punishment, perhaps, exceeding the 
law, but some commanding officers, taking advantage of the law, inflict punishment 
for slight offenses so frequently as to harass the men and create discontent, without 
adding to the efficiency of their ships or to the maintenance of discipline. 

The department, without taking more decided action at present, would suggest to 
commanding officers to try the experiment of forbearance and consideration for the 
feelings of the men, and endeavor to induce cheerful obedience by granting indulgences, 
instead of coercing reluctant obedience through fear of punishment. 

If these means fail then they can resort to punishment, for the department does 
not desire nor intend that the efficiency of the Navy shall be impaired by any undue 
leniency, nor will it sanction any willful disregard of law or disrespect to authority. 
G. O. 204, Feb. 9, 1876. 

33. Same— The power of commanding officers of naval vessels is not confirmed by statutes, 

but on the contrary is an inherent power, the exercise of which has been restricted 
by statutes; and such commanding officer possesses no greater powers in this respect 
than those possessed and exercised by the commander in chief of a fleet. Thus in a 
decision of the Secretary of the Navy, January 14, 1907 (file 6489), it was said: 

" Article 24 of the Articles for the Government of the Navy is not a statute conferring 
powers of punishment upon officers in command of naval vessels, but is ; on the con- 
trary, a provision of law restrictive in its character, prescribing the limits within 
which the disciplinary powers inherent in such command may be exercised. This 
statute does not, under any possible construction, impose greater restrictions upon the 
powers of the commanding officer of a division, squadron, fleet, or naval station than 
it imposes upon the commander of a single vessel." 

The power of the commanding officer of a naval vessel to maintain discipline and 
punish offenses is similar to that possessed by commanding officers of merchant vessels 
under general principles of maritime law, which power, in the latter case, has repeate d- 
ly been likened by the United States courts to the power of a parent over his child, or 
of a master over his apprentice, or of a school teacher over his scholar, in all of whic h 
cases the power is inherent and not expressly conferred by statute. (Opinion of Mr 
Justice Story in U. S. v. Hunt, 26 Fed. Cas. No. 15423.) Similar power has been- 
regarded as existing and in practice has been exercised by commanding officers in the 
Army. A commanding officer of a naval vessel obviously can not be conceded any 
larger powers because of a statute limiting his authority, than he would have possessed 
in the absence of such a statute. C. M. O. 7, 1914, 7. 

34. Rescue— If a naval vessel collides with a merchant vessel the commanding officer 

should do all in his power to rescue the officers, crew, and passengers of the merchant 
vessel. C. M. O. 43, 1883. See also Collision, 22. 

35. Responsibility of— Collision. See Collision, 6, 17, 19. 22. 

36. Same— Grounding ship, etc. See Navigation, 17, 18, 31, 43, 57, 71, 82, 88. 

37. Same— Handling his vessel. See Collision, 6. 

38. Same— For ship — "As no officer would be justified in refusing in time of danger, to 

execute an order involving unreserved exposure of life, so none are authorized, at any 
time, to interpose their judgment between the exigencies of the service anil the respon- 
sibility of the commanding officer. Ho is intrusted with the purposes and orders of 
the Government; to his care and command are committed, under strict accountability, 
the ship and her company, and he is responsible for the accomplishment of the pur- 
poses for which she is commissioned, her safety in danger, and elliciencv in presence of 
an enemy." G. 0. 140, September 17, 1S69. 



92 COMMANDING OFFICERS. 

33. Sentence — Inadequacy of an officer's sentence by general court-martial caused by the 
failure of justice usually incident to such delays of the law as was caused by the negli- 
gence of the commanding officer at the time' of the occurrence of the offense in not 
taking proper disciplinary action. C. M. O. 46, 1910. 1. See also Commanding 
Officers. 27. 

40. Status— Of commanding officers in imposing punishments. See Commanding Offi- 

cers, 14, 31; Jeopardy, Former. 3. 

41. Stranding vessel— Tried by general court-martial. C. M. O. 2, 1915. 

42. Summary courts-martial— The commanding officer of a naval vessel can convene 

only summary courts-martial and deck courts for trial of enlisted men under his 
command. C. M. O. 7, 1914, 10. See also Summary Courts-Martial, 12. 

43. Torpedo vessels— "Nerve" in handling. See Collision, 6. 

44. Uniform disarranged and drunk— While on shore in a foreign port— Tried by 

general court-martial. C. M. O. 18, 1916. 

COMMENDATORY LETTERS. 

1. Clemency— Commendatory letters, particularly when setting forth long and faithful 
service, are entitled to consideration where the offense is what may be termed a 
military one, or in case of a lapse of the character as drunkenness, for example, but 
such letters do not have much weight in a case where the evidence established beyond 
the shadow of a doubt transactions tainted with fraud and extending over the full 
period of time that the court's inquiries mav cover without going beyond the bar of 
the statute of limitations. C M. O. 69, ±903, 2. See also C M. O. 54, 1892; 118, 
1905; Clemency, 11. 
2. Secretary of the Navy— It is within the province of the Secretary of the Navy to 
express his approval or disapproval of the acts or omissions of any officer, enlisted 
man, or civil employee under the department. His action may be in accordance 
with, or even contrarv to, the findings of a board of investigation or anv other source 
of information, or recommendation. File 26283-522, J. A. G., Feb. 12, 1913. Sec also 
Public Reprimand, 18; Reprimand, 10; Secretary of the Navy, 63. 

COMMERCIAL ATTACHE. 

1. Eligibility— Of a retired naval officer. File 27231-67, J. A. G., Aug. 20, 1915, Sec. Navy. 
Aug. 23, 1915. 

COMMISSARY STEWARD. 

1. Charges and specifications— Important allegations to be specified when accused is to 

be charged with irregularities in commissary department. File 26251-12309, J. A. G., 
October, 1916. 

2. Duty— Irregularities in commissarv departments, U. S. Atlantic Fleet. File 14025-1^3 : 

31, Sec. Navy, May 9, 1913. 

COMMISSIONS. See also Appointments: Promotion. 

1. Ad interim. See File 22724-18, p. 5. Sec also Commissions, 23, 29. 

2. Additional numbers in grade— Date of. See Additional Numbers. 

3. Antedating— The practice of antedating the commissions for purposes of rank is an 

old one, and has been repeatedlv recognized and sustained by the Attornev General 
and the courts. (See U. S. v. Vinton. 2 Sumn. 299. 28 Fed. Cas. 3S2; 4 Op. Attv. Gen. 
123, 318, 603, 60S; 5 Op. Attv. Gen. 132; 9 Op. Attv. Gen. 137; 17 Op. Atty. Gen. 97: 
14 Op. Attv. Gen. 191; Collin's v. U. S.,15 Ct. Cls. 22: Kilburn v. U. S., 15 Ct.'Cls. 41, 47; 
23 Op. Attv. Gen. 30, 40; Burchard v. U. S., 19 Ct. Cls. 137, 143: Young v. U. S., 19 Ct. 
Cls. 145: Bennett v. U. S., 19 Cc. Cls. 379, 3S6, 387; Laws v. U. S., 27 Ct. Cls. 59.) File 
26280-68, J. A. G., Apr. 12, 1916. 

4. Same— In cases where appointing power did not fill a vacancy at the time it was 

created, or the person at the time was ineligible for appointment, and the department 
acted promptlv , it is not deemed advisable to antedate the commission. File 94of>-03 
See also File 22724-18, J. A. G., Dec. 4, 1911, p. 3; 5460-72:1, J. A. G., June 8, 1915. 

5. Bond— Failing to execute and file bond when ordered— Tried by general court- 

martial. C. ML o. 29, 1881. 

6. Canceling. So File 26260-132: f, I. A. G., June 2. 1909. 

7. Change of date. See Commissions, 14-17. 

8. Chiefs of bureaus. Sec Bureau Chiefs, 8, 13. 

9. Date of— Officer advanced in rank but not in grade— An assistant paymaster ad- 

vanced in rank from ensign to lieutenant (junior grade), without receiving an advance- 
ment in grade, need not be commissioned, as this is merely an advancement in rank, 



COMMISSIONS. 93 

without change in office, which remains, as before, that of assistant paymaster. File 
26254-542. See also 19 Op. Atty. Gen. 169, 173; 20 Op. Atty. Gen. 358. But see File 
1282-01, Mar. 19, 1901, in which the Secretary of the Navy decided that staff officers 
advanced in rank without advancement in grade or change of office should be nomi- 
nated and, after confirmation by the Senate, commissioned with the higher rank, 
thereby expressly changing the "long-established custom of the department to advise 
officers of the staff corps of the Navy of the attainment of a higher rank in their grade 
by a letter of notification only." File 1282-01, Sec. Navy, Mar. 19, 1901. See also 
Promotion, 73. 

10. Same — Where an officer is transferred from the retired list to the active list by a special 

act of Congress, without stating the position he is to take on the active list, the only 
appropriate date which can be fixed for his restoration is the date of the act itself. 
File 2871-7, Oct. 11, 1907. 

11. Same — Commission should not be dated prior to qualification of candidate — Where 

new offices are created by law, and it is provided therein that no person shall be 
appointed until he has been found qualified by examination, the commission issued 
should not bear a prior date to that when the candidate qualified by examination. 
File 5460-72:1, May 19, 1915. 

12. Same — While there is no statute prescribing the form of commission to be issued to 

officers of the Navy, the established custom of inserting therein the date from which it 
becomes effective has repeatedly been recognized both by law and authorative legal 
opinions and may therefore now be regarded as having the force and effect of law. To 
issue commissions without a date stated therein would result in much confusion and 
avoidable correspondence, as each officer in the service affected would request a 
decision of the department, etc. File 5460-76, J. A. G., July 12, 1915. 

13. Same— For chief pay clerks,. File 5460-76, J. A. G., July 12, 1915. 

14. Same — The action taken at the time an officer's commission was issued should be 

regarded as conclusive upon the present administration and his case should not be 
reopened during a subsequent administration. If any wrong has been done the 
officer, his recourse lies in an appeal to Congress. File 11130-6, J. A. G., Dec. 28, 1909. 
See also 2 Op. Atty. Gen., 8; 13 Op. Atty. Gen. 33, 35; 16 Op. Atty. Gen. 583; 17 Op. 
Atty. Gen. 611; Day v. U. S., 21 Ct. Cls., 264; File 14818-4, J. A. G., Aug. 16, 1908. 

15. Same — The statutes and regulations governing precedence having once been deter- 

mined in any particular case, considerations of repose intervene, and become impor- 
tant. Disturbance of the Navy lists is prejudicial to the service, and should not be 
sanctioned where doubt exists respecting the appropriate action, and where a con- 
siderable length of time has elapsed. File 8171-03; 9019-04; 13 Op. J. A. G., 127. Sec 
also File 5460-72 : 1, J. A. G., June 8, 1915; 11,130-22, J. A. G., Nov. 17, 1913. 

The statutes themselves are by no means simple and free from difficulty in their 
application to existing conditions. Having been once interpreted and applied by 
the department, considerations of repose intervene and become important. If the lis is 
are to be disturbed whenever by ingenious analysis, it can be shown that some minor 
provision of a complicated statute has perhaps been erroneously dealt with a condi- 
tion of uncertainty and instability would ensue more prejudicial to the service than 
the occasional examples of questionable individual hardship that might thereby be 
corrected. File 8171-03, J. A. G., Oct. 30, 1903, p. 4. 

16. Same — The action taken at the time an officer's commission was issued should be 

regarded as conclusive by subsequent administrations, and his case should not there- 
fore be reopened. Opinions regarding the doctrine ot res judicata in administrative 
action considered and applied. File 11130-6, Dec. 2S, 1909. See also File 2346-1. 
Aug. 23, 1905. 

17. Same— An officer of the Marine Corps was retired with the rank of the next higher 

grade when it was the practice of the department to date a retired officer's commission 
of the actual date of retirement and not from the date of the vacancy to which he would 
have been promoted if qualified. Therefore he requested that a new commission be 
issued him as of the latter date, citing Court-Martial Order No. 29, 1915, page 9, as a 
reason for such request. Held, That the officer's date of rank on retirement was 
correctly fixed in accordance with the existing and long cont inued practice, and should 
not be disturbed because of a subsequent decision of the department which prescribed 
a different rule to be applied in future cases. The same principle is observed in cases 
where the department has adopted a rule less liberal in its operation than the previous 
practice without disturbing the stains of oiheers who had theretofore been retired 
File 26260-2076 : 5, J. A. G., Oct. 21 , 1915; Nav. File, 4489-51, Sec. Navy, Oct. 25, 1915 1 
C. M. O. 35, 1915, 11. Scealso File 27231-70; 14818-4, J. A. C, Aug. 16, 1909. 



94 COMMISSIONS. 

18. Same — While an officer might have been promoted to the grade of captain in the 

Marine Corps when a vacancy in that grade occurred, such action was discretionary 
with the appointing power; and since such action was not taken, but the officer was 
promoted and commissioned as of a later date, there is no law or regulation entitling 
him to have his commission date from the occurrence of the vacancy. File 2518-04. 
See also File 5460-72 : 1, J. A. G., June 8, 1915; 7151-03, J. A. G., 1903. 

19. Same — Where the filling of vacancies is discretionary with the President, the commis- 

sions need not be made to date from the occurrence of the vacancy unless the appoint- 
ing power so decides. File 7151-03. See also File 3089-04; 5460-72 : 1, J. A. G., June 
8, 1915. See also Promotion, 50. 

20. Erroneously issued is null and void— A commission issued to an officer who had 

not qualified for promotion, but was nominated and confirmed through error, is null 
and void. File 26260-1193, Jan. 11, 1912. See also File 26260-110 : 1, June 21, 1909; 
26260-132; 26254-645; 26254-482; 26254-654; 26254-655; 5172-93, Apr. 6, 1907; 26254-286Ja, 
May 27, 1909. 

21. General court-martial— The President is not required to issue a commission to an 

officer who had been recommended for trial by general court-martial for shortages in 
his accounts and indebtedness, and who thereafter presented his resignation, which 
was accepted "for the good of the service," in the meantime having been nominated 
by the President for promotion, which nomination was confirmed by the Senate, but. 
whose commission had not been signed by the President. File 26251-2833, J. A. G., 
Mar. 31, 1910. See also 12 Op. Atty. Gen. 304. 

22. Same— But if the commission be signed and sealed, and the office be of a character not 

removable by the President, in that case the President's right over the office no longer 
exists, according to the Supreme Court (Marbury v. Madison, 1 Cranch 50) for the 
right is vested and irrevocable. File 26251-2833, J. A. G., Mar. 31, 1910. 

23. " Gunboat " commissions. File 1282-01. See also Commissions, 1, 29. 

24. Marine officers. See Commissions, 17, 18. 

25. Naval operations, chief of. See File 22724-33, J. A. G., Aug. 22, 1916. See also Naval 

Operations, Chief of, 1. 

26. Numbering of commissions — When commissions bear the same date "the number- 

ing of the commissions is not an act of the President and Senate, but is * * * an 
act of the Secretary of the Navy alone, in order to prevent questions of rank from 
arising among the officers from the circumstances of the identity of date in the com- 
missions. Hence, the question * * * is obviously not one of law, but of practice 
merely in the Navv Department." (1 Op. Atty. Gen., 325.) File 28026-1209:4, 
J. A. G., Oct. 25, 1915; C. M. O. 35, 1915, 9. 

27. Paymaster General— Issuance of a commission to a retired Paymaster General. See 

Paymaster General of The Navy, 4. 

28. Precedence where commissions bear same date — Where naval officers are com- 

missioned on same date, the numbers of the commissions, to determine the relative 
rank of the officers, is, in the absence of statutes, a matter of practice in the Navy 
Department, and not governed by law. (1 Op. Atty. Gen., 325.) See File 28026- 
1209 : 4, Oct. 25, 1915; 11130-27, Aug. 26, 1915. See also Precedence, 13-17. 

29. Recess appointments— The President shall have power to fill up all vacancies that 

may happen during the recess of the Senate by granting commissions which shall 
expire at the end of their next session. (Con. Art. II, sec. 2, cl. 3). File 22724-16:1, 
J. A. G., Apr. 24, 1911, p. 9. 

A temporary appointment during a recess of the Senate need not be made in any 
prescribed form. It has even been held that a communication from the Secretary of 
the Army informing the recipient that he has been appointed an officer of the Army 
by the President is sufficient and answers the purpose of a commission. (O'Shea v. 
IT. S., 28 Ct. Cls. 392.) File 26521-152, J. A. G.. Sept. 22, 1915. 

A recess appointment which was not accepted, and was therefore never of any prac- 
tical effect, should not be accepted after the appointment has been confirmed by the 
Senate, but should be disregarded and a permanent commission issued in the usual 
manner. File 8622-2, Feb. 10, 1908. See also 2 Op. Atty. Gen. 336; U. S. v. Kirk- 
patrick, 9 Wheat 721; File 6288-2, J. A. G., Mar. 29, 1907; 1518-4; 4389. Nov 18, 1907; 
Commissions, 1, 23. 

30. Retired officers— For Civil War Sendee. See Civil War Service, 5, 6. 

31. Same — The advice and consent of the Senate is not required for the issuance of com- 

missions to those retired officers of the Army, Navy, and Marine Corps "whose rank 
has been or shall hereafter be advanced by operation of or in accordance with law." 
(Act Mar. 4, 1911, 36 Stat. 1354.) File 22724-18, J. A. G., Jan. 3, 1912. 



COMMISSIONS. 95 

32. Revocation— After signed and sealed, impossible. See Commissions, 22. 

33. Same. See File 4389; 26260-132 : f, J. A. G., June 2, 1909. 

34. Sale of — Officer tried by general court-martial on request of House of Representatives. 

See Congress, 11. 

35. Secretary of the Navy— May sign commissions. See Secretary of the Navy, 14. 

36. Senate ratifies— The appointment takes place when the President has issued the offi- 

cer's commission, which can only be done after the action of the Senate. (Pomeroy, 3d 
ed., sec. 646.) The President is to nominate, and thereby has the sole power to select 
for office; but his nomination can not confer office unless approved by a majority of 
the Senate. (2 Story, 5th ed., sec. 1554.) File 22724-16:1, J. A. G.,Apr. 24, 1911, p. 9. 

37. Sentimental reasons— A commission should not be issued for sentimental reasons 

where no services are to be rendered under it, the appointment having been declined 
after confirmation by the Senate. The department can not properly request the 
President to commission as a naval officer a person who has never rendered any service, 
and who formally declined on the day on which he was confirmed, to accept the 
appointment. Such course would be wholly without precedent, and would not be 
warranted by the circumstances of the case. To ask the President to issue a com- 
mission with the distinct and explicit understanding that it is not to be accepted, and 
is not to go into effect, would be an entirely anomalous proceeding, and one of doubt- 
ful propriety. (4 Op. J. A. G., 443, Oct. 19, 1893; quoted, file 26251-2833, Mar. 31, 
1910, p. 3. See also File 8622-2, Feb. 10, 1908. 

38. Signed and sealed— President's right over no longer exists. See Commissions, 22. 

39. Staff — Officer advanced in rank but not in grade. See Commissions, 9. 

40. Suspended — An ensign who failed on examination for promotion, was suspended, and 

after six months qualified and was promoted, should not be given in his commission 
the same date as that on which he would have been promoted had he been found 
qualified upon his first examination, as this would entitle him to pay for a period of 
six months during which he was not performing the duties of the higher grade and 
had demonstrated his incompetency therefor. File 26266-475, May, 1915. 

41. Withholding by President— Even after confirmation by the Senate, the President 

may in his discretion withhold a commission from the applicant. And until a com- 
mission, signifying that the purpose of the President has not been changed, the 
appointment is not fully consummated. See File 4996, June 1, 1906; 26251-2833, Mar. 
31, 1910. See also 4 Op. Atty. Gen. 218; Appointments, 9; Commissions, 21. 

42. Same — Until commission signed by President may be withheld and promotion not 

complete — Although a lieutenant commander has been examined and found quali- 
fied for promotion to the grade of commander and the board's finding approved by 
the President, he may, nevertheless, be retired under section 9 of the personnel act 
of March 3, 1899(30 Stat. 1004), his commission not having been signed by the President. 
File 26297-7 : 3, 4, 5. See File 26297-14, June 7, 1913, for a similar case where an officer 
was found qualified by an examining board, but finding of board not acted upon by 
the President. See also File 26297-13, June 7, 1913. 

43. Same— President may withhold commission, or the delivery of the commission to an 

officer after he has been nominated and confirmed by the Senate, notwithstanding a 
locus penitentiac. File 26251-2833, J. A. G., Mar. 31, 1910. See also 12 Op. Attv. 
Gen. 304; Op. J. A. G., June 1, 1906, 34 Br. and Op. Book, 150; 14 Op. J. A. G., 353. 

COMMISSIONS ILLEGALLY RECEIVED FROM GOVERNMENT CONTRAC- 
TORS. See C. M. O. 69, 1903, 2. 

COMMISSIONED. OFFICERS. See Officers. 

COMMISSIONER OF PENSIONS. 

1. Jurisdiction— For granting pensions. See Pension?, 3, 4. 
COMMITTEES. 

1. Government Hospital for the Insane— Committees appointed for patients at. See 
Government Hospital for the Insane. 2. 
COMMON LAW. See. also Words and Phrases. 

1. Charges and specifications— All technicalities applied to common law indictments are 

not required. Sec Charges and Specifications. ;>'.). 

2. Embezzlement— Unknown to common law. See Embezzlement. 7. 

3. "Feloniously"— Use of at common law. See Feloniously, 2. 

4. Jeopardy, former— Principle of Constitution is derived from common law. See 

Jeopardy, Former, 4. 

50756°— 17 7 



96 COMMON LAW. 

5. Name, change of —At common law. Sec Name, Change of, 6 

6. Offenses— Punishment of common law offenses. C. M. O. 21, 1910, 17. Seealso C. M. O. 

2, 1912, 8. 

7. Presumption of death — Generally conceded that an absence of seven vears raises a 

nresumntion of death. C. M. 0. 10, 1915, 9. 

8. Rules of evidence. C. M. O. 21, 1910, 14. 

9. Rules of statutory construction — Where a statute is intended to be declaratory of 

the common law the rule of construction applies that statutes are to be construed 
with reference to the principles of common law and in harmony therewith, unless a 
different intention on the part of the legislature is manifested. C. M. O. 29, 1914, 10, 12 . 

10. Sodomy— Punishment for sodomy at common law was death. See Sodomy, 15. 

11. Specific intent— Where by common law or statute a specific intent is essential to a 

crime, it must be proved. See Desertion, 77. 

12. Subtle technicalities of— Of the English common law should not be introduced into 

naval courts-martial procedure without observing the limitation by which their appli- 
cation is defined, and they should not be so used as to confuse procedure and defeat 
the administration of justice. C. M. O. 94, 1905, 1. 

.13. Wife— Common law wife. (File 26254-1936, J. A. G., Jan. 29, 1916.) See Death Gra- 
tuity, 12. 

14. Same — Witness— Competency of. (See Wife, 5. 

COMMUTING SENTENCES. 

1. Convening authority may not commute sentences— Every officer who is author- 

ized to convene a general court-martial shall have power, on revision of its proceedings, 
to remit or mitigate, but not to commute, the sentence of any such court which he is 
authorized to approve and confirm. (This article, as set forth above in the form given 
in sec. 1624, R. S., is modified bv sec. 9 of the act of Feb. 16, 1909 (35 Stat. 621).) Sec 
A. G. N. 33; A. G. N. 54; C. M. O. 51, 1893; 89, 1899, 1; 150, 1897, 3; 17, 1910, 8. 

2. Same— The officer ordering a summary court-martial shall have power to remit, in part 

or altogether, but not to commute., the sentence of the court. (A. G. N. 33.) See 
Commuting Sentences, 1. 

3. Same — A naval cadet was sentenced to dismissal from the naval service, and the revis- 

ing authority mitigated this sentence to loss of numbers. The department held 
that A. G. N. 54 confers upon every officer authorized to convene a general court- 
martial "power on revision of its proceedings to remit or mitigate, bm not to commute 
the sentence." The action of tne revising authority in changing the punishment 
awarded by the court from dismissal to loss of numbers amounted to a commutation 
of the sentence, which is expressly forbidden by the statutory provision quoted. 
The sentence was accordingly set aside. C. M. O. 89, 1899, 1. Seealso C. M. O. 150, 
1897, 3; 17, 1910, 8; G. C. M. Rec. 28521. But see Commuting Sentences, 1; Dis- 
missal, 19. 

4. President — An officer was sentenced to dismissal from the naval service. The Presi- 

dent placed the following action on the record: The sentence "is hereby approved, 
but it is commuted to the loss of fifteen numbers in his grade." C. M. O. 38, 1907, 1-2. 
See also Convening Authority, 50. The President in the exercise of his power to 
pardon may commute a sentence. 

COMPANY FUND. See C. M. O. 49, 1915, 4. 

COMPENSATION. 

1. Counsel— Naval officers before naval courts-martial. See Counsel, 17. 

2. Retired officers— Whether considered as "pay" or "pension." See Retired Offi- 

cers, 16. 

COMPETENCY OF WITNESSES. Sec Deck courts, 5 (p. 159); Evidence, 79. See 

also Witnesses, 29, 52. 
C03IPLAINING WITNESSES. See C. M. O. 53, 1910, 2; 54, 1910, 2. 
COMPLEMENTS OF SHIPS. See File 13352-407, J. A. G., Mar. 16, 1912. 
COMPOUNDING A FELONY. File 5208-1, J. A. G., July 2, 1906. 



COMPTROLLER OF THE TREASURY. 97 

COMPTROLLER OF THE TREASURY. 

1. Abstract questions — The comptroller wil] not render decisions upon abstract ques- 

tions. File 26254-345:1. 

2. Administrative matters— Policy of the department— The policy of the Navy Depart- 

ment has been to disapprove the submission to the Comptroller of the Treasury of 
specific questions involving administrative matters under its own jurisdiction, and 
the department has not been inclined to invite controversy by specifically requesting 
his decision upon questions which the law places under the cognizance of the Secretary 
of the Navy. File 11112-476, J. A. G., Feb. 20, 1915; C. M. O. 10, 1915, 8. See also 
Secretary of the Navy, 18. 

3. Death gratuity. See Death Gratuity. 

4. Department — Policy of Navy Department with reference to administrative matters. 

See Comptroller of the Treasury, 2. 

5. Form of requests for decisions. See Comptroller of the Treasury, 12. 

6. Jurisdiction — No jurisdiction — When item from which appealed is not disallowed but 

only suspended. File 26254-316 :a. 
For jurisdiction of Comptroller in general, see Comptroller of the Treasury, 18. 

7. Navy Regulations— Validity of. (File 26254-1451:11, J. A. G., Apr. 12, 1915; 30 Op. 

Atty. Gen. — .) See Regulations, Navy, 10. 

8. Orders — Comptroller can not relieve officers of duty to obey orders. File 26254-58, 

June 27, 1908. 

9. Pending questions — The department will not request decision of comptroller upon a 

matter which is pending before the auditor. File 26254-324. 

10. Questions of law — The comptroller's decision upon a question of law involved in the 

settlement of accounts under his cognizance, is not binding upon the department in 
taking action upon matters under its cognizance, even though the identical question 
of law maybe involved. File 26254-1451:11, J. A. G., Apr. 12, 1915. See also Bil- 
lings v. U. S., 23 Ct. Cls. 180. 

11. Reconsideration of decision — It is not the policy of the department to request the 

Comptroller of the Treasury to reconsider his decisions in individual cases unless such 
decisions tend to disturb the practice of the service, based on naval regulations or 
instructions issued pursuant to law. File 26254-1947, Sec. Navy, Jan. 19, 1916; C. M. 
O. 3, 1916 8. 

12. Requests for decisions of — Form of— Requests for decisions of the Comptroller of the 

Treasury should contain a concise statement of facts, with all comments and argu- 
ments not necessary to a decision of the case by the comptroller eliminated. 

The rule formulated by the Attorney General, and which the department applies 
equally to requests for decisions submitted to it for transmittal to the comptroller, is as 
follows: 

"When an opinion is requested of the Department of Justice on behalf of the head 
of another executive department the facts must be definitely formulated and clearly 
stated by the person asking the opinion. The Attorney General can not be required to 
extract a finding of facts from correspondence or reports. " (22 Op. Atty. Gen. 342.) 
" The unvarying practice of the Attorney General from the foimdation of the Govern- 
ment, has been to require a succinct statement of the facts and of the question of law 
arising thereupon upon which an opinion is desired." (20 Op. Atty. Gen. 493.) 
File 26254-1263, Sec. Navy, Aug. 19, 1913; C. M. O. 10, 1915, 7. See also File 26254- 
1661, Sec. Navy, Nov. 5, 1914. 

13. Same — Administrative questions not under comptroller's jurisdiction. See Comp- 

troller of the Treasury, 2. 

14. Same— Naval Instructions 1913, 1-2205 (2), reads as follows. "Applications to the 

Comptroller of the Treasury, under the act approved July 31, 1894 [28 Stat. 20S], for 
his decision upon any question involving a prospective payment, shall be forwarded 
through the usual official channels to the Navy Department for transmission to that 
officer." 

In view of the above the action of an officer who submitted a request direct to the 
comptroller for a decision as to legality of payments to court-martial prisoners was in 
violation of the foregoing naval instructions. 

In this connection it should be understood that the department will gladly forward 
to the comptroller any request of a pay officer in which a question of a payment , past or 
prospective, is at issue, but 1-2205 (2) was promulgated in order not only to discourage 
questions of a trivial nature being sent the comptroller, or those previously decided 



98 COMPTROLLER OF THE TREASURY. 

by him, but also to afford the department an opportunity to decide questions which 
are administrative. (See C. M. O. 10, 1915, p. 8.) File 26254-1922, Sec. Navv, Dec. 
10, 1915; C. M. O.. 49, 1915, 22. See also File 26254-1964, Sec. Navy, Feb. 12, 1916. 

15. Same — Vexatious— While the right to appeal to the Comptroller of the Treasury from 

a disallowance by the auditor, can not be denied, yet when the question presented 
was plainly covered by previous decisions, the department returned letter to claimant 
approving the Paymaster General's indorsement that "it is regarded merejy in the 
nature of a vexatious demand upon the comptroller's time to submit this" claim. " 
File 26254-360. See also Comptroller of the Treasury, 14. 

16. Retired officers— Jurisdiction of Comptroller over pay and rank. See Retired Offi- 

cers, 17. 

17. Ships' stores. See Ships' Store, 1. 

18. Status— Prior to the act of July 31, 1894 (28 Stat. 208) the Comptroller ot the Treasury 

had no legal status as an adviser on questions of law. He was an accounting officer 
holding great power, but his function was to take action, not to advise others how to 
act. (20 Op. Atty. Gen. 654.) The practice, however, developed of asking the Comp- 
troller's opinion upon questions of law involving payments, and this practice was 
given legal sanction by the act of July 31, 1894, section 8 (28 Stat. 208), which required 
the Comptroller of the Treasury to render a decision upon the request of heads of 
executive departments upon any question involving a payment to be made by or 
under them, "which decision when rendered shall govern the Auditor and the Comp- 
troller of the Treasury in passing upon the account containing said disbursement." 
This statute plainly limits the Comptroller of the Treasury's jurisdiction to decisions 
upon proposed payments in specific cases, for it speaks of "a payment to be made," 
and "the account containing said disbursement." (1 Comp. Dec. 31; 2 Comp. Dec, 
58; 5 Comp. Dec. 562.) File 26254-1451:11, J. A. G., April 12, 1915, p. 19. 

COMPULSORY PROCESS. 

1. Constitutional right— Of accused to have compulsory process for obtaining witnesses 
in his favor should never be denied. C. M. O. 17, 1910, 9*". See also Constitutional 
Rights of Accused, 17. 

CONCLUSIONS OF LAW. 

1. Court of Claims. See C. M. 0. 10, 1915, 13. 

2. "Culpable"— States a mere conclusion of law and is not necessarily essential to the 

validity of the charge of "Culpable inefficiency in the performance of duty " if improp- 
erly excepted by the court in its finding. C. M. O. 4, 1914, 1, 7. 

3. "Desertion"— The word " desertion " "as used in specifications under a charge of 

" Desertion." 

4. Finding— A court-martial found proved all the substantial allegations of fact contained 

in a specification but did not find proved the conclusions of law as set forth in the 
same specification. C. M. O. 4, 1913, 9. 

5. Offense — An offense is charged by the statement of the material facts which constitute 

it, and not by the statement of a mere conclusion of law. C. M. O. 4, 1914, 1, 7. See 
also Charges and Specifications, 49; Conduct Unbecoming an Officer and a 
Gentleman, 7. 

6. "Unlawful." See " Unlawful Purpose." 

CONDITIONAL DISCHARGE. See Discharge Obtained by Fraud. 
CONDITIONAL SALE. C. M. O. 6, 1915, 9. See also Deserters, 11. 
CONDITIONAL PARDON. See Pardons, 4, 5. 

CONDONE. 

1. Drunkenness on duty— Department does not desire to condone such offenses as 

"drunkenness on duty." C. M. O. 5, 1915, 2. 

2. Sentence remitted— Department remitted sentence of an officer, without condoning 

accused's offense in order to avoid a miscarriage of justice. C. M. 0. 37, 1915, 9. 

3. Unofficerlike conduct— The department does not desire to condone such offenses as 

unofficerlike conduct. C. M. O. 28, 1894, 4. 

CONDUCT RECORD OF THE ACCUSED. C. M. 0.96,1898. See also Evidence, 14; 
Service Records; Reports on Fitness; Summary Courts-Martial, 13. 

CONDUCT REPORTS. C M. O. 15, 1910, 4-5. See also Probation, 17. 



CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN. 99 

CONDUCT SUBVERSIVE OF GOOD ORDER AND THE DISCIPLINE OF THE 
SERVICE. 

1. Officer charged with. G. C. M. Rec. 6230. 

CONDUCT TO THE PREJUDICE OF GO@D ORDER AND DISCIPLINE. 

1. Absence unauthorized— With manifest intention of evading transfer to another ship 

is chargeable both under "Conduct to the prejudice of good order and discipline," 
and a charge specifying unauthorized absence. C. M. 0.27,1915,2. See also Absence 
from Station and Duty Without Leave, 12. 

2. Same — Not properly chargeable under. See Absence from Station and Duty 

Without Leave, 12. 

3. Attempt to smuggle liquor— Into navy yard. G. C. M. Rec. 31142. 

4. Attempted unauthorized absence. G. C. M. Rec. 31333. 

5. Avoiding— Expeditionary duty. G. C. M. Rec. 32136. 

6. Breaking arrest — Not properly chargeable under. See Breaking Arrest, 2. 

7. Same — Enlisted man broke arrest after expiration of enlistment but before discharge. 

See Breaking Arrest, 3. 

8. Discharge obtained by fraud. See Discharge Obtained by Fraud. 

9. Disrespectful — Letter to Major General Commandant, Marine Corps. G. C. M. Rec. 

31679. 

10. Leaving ship— While under suspension from duty and missing ship. G. M. C. Rec. 

31925. 

11. Midshipmen— Charged with. C. M. 0. 10, 1909; 41, 1909; 8, 1912; G. C. M. Rec. 25104. 

12. Missing ship— Chargeable under. C. M. O. 42, 1915, 1; 49, 1915, 1, 2; G. C. M. Rec. 

31298. 

13. Same— And avoiding expeditionary duty. G. C. M. Rec. 32136. 

14. Same— Officer. C. M. O. 14, 1916. 

15. Money transactions — It is doubtful if money transactions of a culpable character 

between enlisted men, in their private capacity and not directly affecting the naval 
service or impairing discipline, can be charged under "Conduct to the prejudice of 
good order and discipline." File 26287-1041, J. A. G., Jan. 13, 1912. See also Scan- 
dalous Conduct Tending to the Destruction of Good Morals, 6,9. 

16. Not halting— When challenged by patrol. G. C. M. Rec. 29071. 

17. Officers— Charged with. C. M. O. 8, 1909; 11, 1909; 15, 1909; 39, 1909; 40, 1909; 45, 

1909; 46, 1910; 51, 1910; 16, 1910; 18, 1910; 24, 1910; 4, 1911; 13, 1911; 15, 1911; 9, 1912; 
15, 1912, 5; 22, 1912; 23, 1913; 31, 1913; 7, 1914; 11, 1914; 17, 1914; 19, 1914; 27, 1914: 43 
1914; 14, 1916; 18, 1916; 40, 1916; 41, 1916; 1, 1917; 2, 1917; 5, 1917; 6,1917; 9, 1917. 

18. Warrant officers— Charged with. C. M. O. 12, 1912, 3; 17, 1912; 18, 1912; 10, 1914; 38, 

1914; 11, 1916; 20, 1916. 

19. Warrant officers (commissioned)— Charged with. C. M. O. 46, 1915; 38, 1916. 

20. What constitutes. See Conduct Unbecoming an Officer and a Gentleman, 12. 

CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN. 

1. Army — Sentence of dismissal mandatory for officers found guilty of. C M. O. 49, 1915, 

23. See also Conduct Unbecoming an Officer and a Gentleman, 6. 

2. Debts — Nonpayment of. charged under. See Debts, 2, 12. 

3. Midshipmen— Charged with. C. M. O. 9, 1909; 7, 1912; 8, 1912. 

4. Newspaper— Officer writing letters to. C. M. O. 22, 1890. 

5. Officers— Charged with. C. M. O. 5, 1909; 16, 1909; 48, 1910; 53, 1910; 54, 1910; 15, 1911; 

32, 1911; 13, 1912; 36, 1913; 40, 1913; 20, 1914; 26, 1914; 27, 1914; 30, 1914; 43, 1914; 
1, 1916; 12, 1916; 15, 1916; 5 1917; 10, 1917; 20, 1917. 

6. Sentence should include dismissal— Congress by law has provided that any officer 

of the Army convicted of "Conduct unbecoming an officer and a gentleman" "shall 
be dismissed from the service" (sec. 1342, art. 61, Rev. Stats.), thus making a sentence 
of dismissal mandatory upon conviction of the offense named in Army cases. 

While there is no similar statutory enactment with reference to the' Navy, the fore- 
going is sufficient evidence of how seriously this particular offense has been regarded 
by Congress. 

A court-martial composed of naval officers should not refrtse to accept for the service 
of which they are members the standard fixed by law to which officers of the Army 
must conform in order to retain their commissions. File 26251-U1S1 , Sec. Navy , Dec. 
17, 1915; G. C. M., Rec. 31436; C. M. O. 49, 1915, 23. See ateo File 13673-3728, J. A. G .. 
Mar. 17, 1916; C. M. 0. 12, 1916, 1-2; Court, 169. 

7. Specification under charge of —An addition to specification under a charge of "Con- 

duct unbecoming an officer," etc., of the words "all of which was an abuse of his t rust , 



100 CONFESSIONS. 

a violation of his public duty, and was conduct unbecoming an officer and a gentle- 
man" does not affect the specification, whether or not .such words are found proved. 
File 26251-3252. J. A. G., Apr. 26, 1910. p. 5. 

8. Warrant officers— Charged with. C. M. O. 5, 1913; 13, 1913; 29, 1913; 11, 1915; 20, 1916. 

9. Warrant officer, retired— Charged with. C. M. O. 34, 1916. 

10. Warrant officers (commissioned)— Charged with. C. M. O. 21, 1915; 2, 1916. 

11. Warrant officers (commissioned), retired — Charged with. C. M. O. 15, 1915; 20, 

1916. 

12. What constitutes—" "What is conduct unbecoming an officer and a gentleman, or what 

is conduct to the prejudice of good order and military discipline, is beyond the bounds 
of exact formula and must depend more or less upon the circumstances and peculiari- 
ties in each case. * * * * The cases which involve conduct to the prejudice of 
good order and military discipline are still further beyond the bounds of ordinary 
judicial judgment, for they are not measurable by our innate sense of right and wrong, 
of honor and dishonor, but must be gauged by an actual knowledge and experience 
of military life, its usages and duties." "In the recent case of Fletcher (26 Ct. Cls. 
541, 562), where the court was obliged to pass upon the legality of a sentence for con- 
duct unbecoming an officer and a gentleman, resting upon a series of acts which 
neither civil nor criminal jurisprudence wot 1 Id nave stigmatized as fraudulent, it was 
said * * * 'In military life there is a higher code termed honor, which holds its 
society to stricter accountability; and it is not desirable that the standard of the 
Army [and Navy! shall come down to the requirements of a criminal code.'" 
(Swaim v. U. S., 28 Ct. Cls. 173.) File 26260-1392, 26260-697, J. A. G., June 29, 1911, 
p. 10. See also Honor; Jurisdiction, 26. 

CONDUCT UNBECOMING AN OFFICER OF THE NAVY. 

1. Midshipman— Charged with. C. M. O. 3, 1909. 

CONFESSIONS. 

1. Admissibility and nature of — The commanding officer of the accused called his 

attention to a newspaper account of certain occurrences in which the accused par- 
ticipated while on shore "and asked him if he had any statement to make concern- 
ing it." The accused thereupon made a verbal statement concerning the newspaper 
report "without threat, inducement, or promise of reward." The commanding offi- 
cer then "asked him if he would make a written statement " and the accused com- 
plied without "any threat or reward or promise." The department held that both 
the verbal and written statements were admissible as confessions. C. M. O. 7, 1914, 
13-14. 

2. Same— It is generally agreed that voluntary and deliberate confessions of guilt are 

among the most effectual proofs in the law, on the presumption that a rational 
being will not make admissions prejudicial to his interest and safety, unless urged 
by the promptings of truth and conscience. (2 Moore on Facts, sec. 1181, and 
authorities cited.) The real question to be considered in determining whether or 
not the confession was voluntary is t "was there any threat or promise of such a nature 
as would be likely to cause the accused to tell an untruth from fear of the threat or hope of 
profit from the promise?" (C. M. O. 26, 1910.) 

The rule is well stated that "whether a confession is voluntary depends largely 
upon the facts of the particular case. If it is obtained by reason of oral threats of 
harm, by promise of benefit, or by actions cf those in control of the prisoner which 
are equivalent to such threats or promises, it is involuntary and incompetent, and 
in determining whether it was obtained by such means the sex, age, disposition, 
education, and previous training of the prisoner, his mental qualities, his physical health, 
and his surroundings are elements to be considered." (12 Cyc, 464.) C. M. O. 7, 1914 
14. See also C. M. O. 224, 1902. 

3. Same — The prosecution introduced in evidence an alleged confession of the accused. 

The accused testified that he was under the impression that his commanding officer 
"was going to get him out of this trouble." 

From the testimony adduced there does not appear to have been any promise 
made by his commanding officer to relieve the accused from prosecution nor any 
such promise or representation as could reasonably have induced the accused to 
state things that were not true, even though the court gave full faith and credit to 
the testimony of the accused as to the statements made to him by his commanding 
officer. 

The question as to whether or not the accused was influenced to make this con- 
fession through expectations that he would not be prosecuted does not rest upon his 



CONFESSIONS. 101 

testimony that such were the facts, but upon whether the court, taking into consid- 
eration all the testimony in connection therewith, considered that the accused was 
justified in believing that he would not be court-martialed if he made a confession. 
C. M. O. 26, 1910, 9. 
Same — In Pierce v. United States (160 U. S., 355), the admission in evidence of certain 
statements made by the defendant while under arrest and handcuffed was objected 
to. As to this matter the Supreme Court said: 

"No exception was taken to the admission of this testimony, and the court prop- 
erly held that the mere presence of officers is not an influence. Confessions are not 
rendered inadmissible by the fact that the parties are in custody, provided that 
such confessions are not extorted by inducements or threats. (Hopt v. Utah, 110 
U. S., 574, 583; Sparf v. United States, 156 U. S., 51, 55.)" 

In Sparf and Hansen v. United States (156 U. S., 51), it was held that a voluntary 
confession may be made while a defendant is confined and in irons under an accusation 
of having committed a capital offense. 

"A confession is admissible even if elicited by questions, whether put to the pris- 
oner by a magistrate, officer, or private person." (Greenleaf, 15th ed., 229.) 

And also, if the statement of the accused be not regarded as a full confession of guilt, 
then a fortiori: 

"Mere incriminating statements of facts not amounting to confessions of guilt are 
not subject to the restrictions that obtain in the case of confessions." 

It was also held in the case of United States v. Graff (26 Fed. Cas. No. 15244) that— 

"A written statement made freely, without the influence of a threat or promise, 
by a person acknowledging his connection with another in smuggling goods, may 
be admitted in evidence against the former, where it appears that he was not under 
arrest, though he had been told that he was charged with being connected with 
smuggling." 

And indeed an accused person may be actually made drunk, and if a confession is 
made while thus intoxicated it will nevertheless be admissible. C. M. O. 31, 1911, 5-6. 
. Same — The corpus delicti having been proved, a confession by the accused may be 
admitted in evidence, providing it was a voluntary confession. A letter claimed to 
have been written by the accused in which he acknowledged having drawn transpor- 
tation illegally against the Government was introduced by the judge advocate for the 
purpose of proving the charge made against the accused (misappropriating to his own 
use the transportation in question). Held, That in order that such letter be admis- 
sible as a confession, it must be proved, (1) that the transportation was actually 
drawn, (2) that the confession contained in the letter was voluntarily written by the 
accused, and (3) that it was actually written and signed by the accused. C. M. 0. 17, 
1910, 3-4. See also C. M. O. 42, 1909, 6; 26, 1910, 9-10; 31, 1911, 5; G. C. M. Rec. 21166, 
21176, 21203, 21205, 21243, 21244, 22393, 23490, 23491, 23492, 24221, 24258. 
i. Same — Forms of Procedure, 1910, page 138, states that "it must be clearly shown that 
the confession was voluntary, and anything that will tend to show that a confession 
was extorted by threats or promises, or by use of force, especially by one in authority, 
will destroy its value as evidence." (See also C. M. O. 224, 1902; 32, 1908, 2; 47, 1910, 
6; 17, 1910, 4; 26, 1910, 9; 31, 1911, 5-6; 5, 1913, 9; 10, 1915, 5; Index-Digest, 1914, 10.) 
C. M. O. 3j 1916, 6. See also File 26251-12159, Sec. Navy, Dec. 9, 1916, p. 10. 
'. Same— Against third parties— In sodomy. G. C. M. Rec. 23491. See also G. C. M. 

Rec. 23490, 23492; CONFESSIONS, 23. 
1. Board of investigation — The statement made by an accused before a board of investi- 
gation, when such statement takes the complexion of an admission against interest or 
a confession, is admissible before naval courts-martial. G. C. M. Rec. 11279. 
i. Commanding officer — The fact that an accused confessed to his commanding officer, 
who was investigating this case, does not of itself throw doubt upon the truthfulness 
of his confession and thus render it inadmissible. (C. M. O. 7, 1914, 13-15; Index- 
Digest, 1914, 10.) C. M. O. 3, 1916, 7. SeealsoC.M. 0.212, 1902. 

In a case where the accused made a confession to his commanding officer the 
department remarked as follows: As stated by the judge advocate in his closing 
argument upon the trial of the accused "the accused in this case is not a bov, nor is 
he drawing a boy's salary. . He graduated from the Naval Academy five years ago, 
and is 26 years of age. He holds a commission in the United States Navy, with the 
honor and trust it is presumed to carry with it." It can not be presumed that a com- 
missioned officer of the Navy would regard a simple question put to him by his com- 
manding officer as to whether "he had any statement to make," as compelling or 
inducing him to make an involuntary statement of such character that it could' not 



102 CONFESSIONS. 

reasonably be accepted as true, particularly when, as in this case, the accused had 
himself voluntarily sought an interview with his commanding officer in connection 
with the matter. On the contrary, a commissioned officer of the age, education, and 
experience of the accused must be presumed to know— and is in fact required to know— 
the provisions of the Navy Regulations, 1913, contained in chapter 13, entitled "Naval 
Administration and Discipline/' one paragraph of which chapter (Art. It. 1404 (2)) 
reads as follows: " He [commanding officer] shall also call upon the accused for such 
counter statement or explanation as he may wish to make, and for a list of the persons 
he desires to have questioned in his behalf. If the accused does not desire to submit a 
statementhe shall setforth that fact in writing." Accordingly, the accused and the mem- 
bers of the general court-martial by which he was tried are chargeable with knowledge 
of the fact that the commanding officer, even had he desired or undertaken to do so, 
could not legally compel any subordinate under his command to make a statement 
relative to accusations against such subordinate. Furthermore, as the members of 
the court-martial in this case were required to know, it is not necessary that the 
accused should be warned that any statement he might make would be used against 
him as evidence. (See C. M. O. 31, 1911, and decisions of the Supreme Court and 
other authorities quoted therein.) C. M. O. 7, 1914, 14-15. 

A statement of an accused, charged with "desertion," made by him before his com- 
manding officer when his oflense is being investigated at the mast, is uniformly ad- 
mitted in evidence when he is tried for the offense. C. M. O. 43, 1906, 2. 
10. Coroner's inquest — Repeated efforts were made by the judge advocate to introduce 
in evidence the testimony given by the accused before the coroner's inquest which 
inquired into the death of his deceased wife. A copy of the record was produced by a 
witness, who testified that he was deputy county clerk and the legal custodian of the 
record; that the original thereof was filed by him in the office of the county clerk; 
that the copy produced was a duplicate made at the same time as the original and by 
the same process; and that the duplicate had been certified by him the same as the one 
on file. The judge advocate specified the portions of the record containing the testi- 
mony of the accused which he desired to introduce ; but the introduction thereof was 
objected to by counsel for the accused, and objection sustained by the court on the 
ground that such testimony was irrelevant and not voluntary. Subsequently, the 
judge advocate endeavored to introduce a portion of such testimony by oral examina- 
tion of the coroner, who was present at the inquest. This, however, was also refused 
bythecourt. In Peoples. Molineaux(168N. Y.,331; 61 N. E.,308; 62 L. R. A., 193) 
it was stated by the court that the rule " is now firmly established in this State [New 
York] that when a person testifies at an inquest as an accused or arrested party, his 
testimony can not be used against him upon a subsequent trial of an indictment 
growing out of the inquest unless his testimony has been voluntarily given after he 
has been fully advised of all his rights and has been given an opportunitv to avail 
himself of them." (See also State v. Finch, Supreme Court of Kansas, 81 Pac, 494 ) 
In thecase of State w. Wescott(104N. W., 341, 343) it was held by the Supreme Court of 
Iowa, with reference to the admission in evidence of a confession made by the defend- 
ant before a coroner's inquest, that "there was no error here of which defendant may 
justly complain. While the defendant may have been under unlawful arrest, this did 
not of itself make the confession involuntary. There were no threats or duress suffi- 
cient to destroy the voluntary character of the confession. * * * Before making 
the statement on the morning of December 13, the defendant was fully advised as to 
his rights, and there were no threats or promises made at that time. Apparently what 
he said or did was entirely voluntary." In the case of Green v. State (52 S. E., 431), 
decided by the Supreme Court of Georgia November 20, 1905, it was held, quoting 
syllabus: H & 

"It is competent to prove on a subsequent trial the statement of the prisoner at a 
ooroner's inquest by the testimony of witnesses who profess to remember the substance 
of such statement; and it is not error for the court to overrule an objection to such tes- 
timony, urged on the groimd that 'the law requires the evidence before the coroner's 
jury to be in writing, and the writing would be better evidence of what the witness 
said. * * *.' 

"An objection to the admission of the same evidence, on the ground that 'the de- 
fendant was in the custody of the officers, under arrest, and while thus situated was 
compelled to give testimony against herself, and it was unlawful to require her to make 
any statement tending to incriminate herself; and therefore such statement would be 
inadmissible,' Is equally without merit where the record does not disclose any evi- 
dence, either of compulsion or that the statement proved by such testimony was not 



CONFESSIONS. 103 

freely and voluntarily made." (See also 14 Cent. Dig. Crim. Laws, sees, 1185-1188; 
6 Dec. Dig. Crim. Law, sec. 521.) 

In the present case the court was plainly in error in ruling that the testimony of the 
accused before the coroner's inquest was inadmissible, there being nothing whatever 
to show that such testimony was given by the accused under compulsion, and the 
only ground for the court's ruling appearing to be statements made by counsel for 
the accused in urging, without any evidence to support his remarks, "that the 
accused was there under process; he was compelled to testify. He was compelled to 
give testimony perhaps prejudicial to himself." C. M. O. 5, 1913, 9, 10. 

11. Corpus delicti. See Corpus Delicti. 

12. Court of inquiry — The department held that a court was in error when it held that a 

statement made before a court of inquiry in the nature of a confession is inadmissible 
in a later trial because proper and timely warning was not given the accused when his 
testimony was taken before thecourt of inquiry. C. M. 0. 12, 1904, 4; File 26251-12895. 

13. Custody of officers. See Confessions, 4, 10, 22. 

14. Entire confession should be admitted— Confessions should be admitted in their 

entirety. Introducing excerpts is irregular. C. M. O. 41, 1904, 2. 

15. Examining board — Statements made before an examining board. See Section 1500 

R. S.; C. M. O. 43, 1906; 101, 1903, 10; 88, 1895; G. C. M. Rec. 11279; 7913; 24258. 

16. Hope that charge would be withdrawn — If an officer admits to his superior officer 

in a written statement that he committed a military offense and promised not to 
repeat the offense again, under the well-grounded hope that a charge which had been 
preferred against him would be withdrawn, the admission thus made, in case he were 
actually brought to trial upon such charge, would not properly be received in evidence 
over an objection. C. M. O. 32, 1908. See also Confessions, 18. 

17. Order — A confession made by the accused after orders to do so from an officer in au- 

thority over him can not be considered as voluntary. It was so held under the word- 
ing of a statement by the accused, as follows: " Having been called upon for a statement 
* * * I make this statement freely of my own accord." Such practice was held 
to be contrary to the spirit of the law and a conviction depending upon such evi- 
dence (confession) would beillegal. C. M. O. 47, 1910, 6. 

18. Same — An example of a confession held to have been involuntary is given in General 

Court-Martial Order No. 47, 1910, page 6, in which the executive officer addressed the 
following order to the officer of the day: " Make these two men write full statements as 
to what they did with their uniforms." C. M. O. 7, 1914, 14. See also C. M. O. 32, 
1908 where accused was ordered to submit a statement and the case was disapproved. 

19. Preliminary examination — "The court is allowed to take testimony to ascertain 

the absolute conditions under which a confession was made in order to decide 
whether it was a voluntary act of the accused. " (Forms of Procedure, 1910, p. 138. 
See also C . M. .5, 1913, p. 9. ) That is, it is proper for the court to allow a preliminary 
examination of witnesses, before the contents of the confession are divulged to decide 
whether or not the confession was voluntary and thus admissible. (C. M. 0. 10, 1915, 
p. 4.) Where the facts shown by this preliminary examination are conflicting the 
question as to whether the confession was voluntary is to be determined by the court 
whose decision in general will not be disturbed. (C. M. O. 10, 1915, p. 5; Index- 
Digest, 1914, p. 10.) C. M. O. 3, 1916, 6-7. 

In a case where a general court-martial refused to permit the defense to cross-exam- 
ine a witness who was on the stand for the purpose of introducing a confession to show 
that it was involuntary, the department stated: " Before a confession or statement in 
. the nature of a confession may be introduced in evidence it is necessary to show the 
circumstances under which such confession or statement was made in order that the 
court may determine whether or not it was voluntary. To this end the judsie advo- 
cate, when introducing such a statement, should conduct a preliminary examination 
of the witnesses in order to show the surrounding circumstances. Counsel for the 
accused is then entitled to cross-examine the witness on the same point, and it is en-ot- 
to refuse to permit him to do so." (CM. 0.5, 1913,9; seealso 12Cyc. 4>1.) It follows 
that unless a confession is shown to be voluntary it is incompetent and inadmissabie 
as evidence. (C. M. O. 32, 1908, 2; 17, 1910, 4; 26, 1910, 9; 5, 1913, 9; 7, 1914, 14.) 

In a recent case the judge advocate offered in evidence an alleged confession signed 
by the accused, after examining a witness for the prosecution, before whom such con- 
fession was made concerning circumstances bearing on its voluntary character. 
Counsel for the accused asked permission, which was properly granted by the court . 
to cross-examine the witness m question before the alleged 'confession- icas received 
in evidence "only on that one point of determining whether any confession that may 



104 CONFESSIONS. 

be testified to was voluntarily made by tbe accused." Counsel for the accused then 
stated that before the confession should be admitted "the accused would like to testify 
and will himself ask for the privilege and will volunteer to testify at this time on the 
single issue of what was said to him as leading up to statements which he subsequently 
made" on the occasion of the alleged confession. Thereupon, the desired permission 
having been granted by the court, the accused was at his own request duly sworn as 
a witness in his own behalf, and testified on the subject. As a result of this testimony 
there was a conflict in the evidence as to the circumstances under which the confession 
was made. The defense objected to the admission of the confession in evidence, and 
the court permitted it to be introduced over such objection. The department held 
that where facts shown by preliminary examination are conflicting the question as to 
whether the confession was voluntary is to be determined by the coxirt whose decision 
will not be disturbed. (G. C. M. Rec. No. 29422; File 26251-92-: 0, Set:. Navy, Nov. 24, 
1914.) C. M. O. 10. 1915. 5. 

20. Same — In a case where there was a conflict in the evidence given by the witnesses for the 

prosecution and that given by the defense as to the circumstances under which a con- 
fession was made, the department stated: " Under these circumstances it was for the 
court to decide which of the witnesses it would believe, and what were the actual 
facts of the case. The department has repeatedly held that when the facts are in 
dispute, and there is such a conflict in the evidence that reasonable men might differ 
as to the conclusions to be drawn therefrom, the decision of the court on the subject 
should not be disturbed." (C. M. O. 4, 1913, 57; 24, 1914, 7; 29, 1914, 9: G. C. M. Rec. 
No. 29422; File 26251-9280.) Therefore, where the facts shown by the preliminary 
examination are conflicting the question whether the confession was voluntary is to 
be determined by the court whose decision willnot in general be disturbed. G. C. M. 
Rec. No. 29422; File 26251-9280; CM. 0.51, 1914, 3. 

21. Reason behind the rule of admissibility — It is a rule of evidence that in order for a 

confession to be admissible it must have been voluntary. The phrase "voluntary " 
is so "indefinite that it is of little service in itself." (1 Greenleaf, p. 355, sec. 219.) 

The reason behind the doctrine "and the controlling inquiry is, whether theinduce- 
ment held out to the prisoner was calculated to make his confession an untrue one. " 
(1 Greenleaf, p. 354, sec. 219.) 

Rice on Evidence^ vol. 3, page 489, states that the "confessions of the prisoner are 
receivable in evidence, upon the presumption that a person will not make an untrue 
statement against his own interest. " 

The underlying principle is that the confession " shall not be induced by improper 
threats or promises, because under such circumstances the party may have been 
influenced to say that which is not true, and the supposed confession can not be safely 
acted on." (1 Greenleaf, p. 354, sec. 219.) 

" The reason for excluding the confession is, to repeat, not that the law affirmatively 
presumes it to be untrue, but that its truthfulness is so uncertain as to render it unsafe 
for the jury. Therefore, as often said, the real reason in every case is, whether or not 
the confessing mind was influenced in a way to create doubt of the truth of the con- 
fession. . (2 Bishop's New Crim. Proc, p. 10-19.) 

" The doctrine in its essence and divested of its technicalities; is that a defendant 's 
confession is admissible in evidence against him if made freely and. without hope of 
benefit to his cause; otherwise it is rejected, since its purpose may have been to secure 
such benefit rather than to disclose the truth.'" (2 Bishop's New Crim. Proc p 
1043.) CM. 0.3, 1916, 7. 

22. Silence as a confession— "Where, on being accused of crime, with full liberty to 

speak one remains silent, his failure to reply or to deny is relevant as tending to show 
his guilt. His silence alone, however, raises no legal presumption of guilt. Its effect is 
for the jury, and from it, in connection with other facts and circumstances, they may 
infer that he is guilty . " (12Cyc.421.) 

A confession may'in some cases be collected or inferred from the conduct and de- 
meanor of a prisoner on hearing a statement affecting himself. "As such state- 
ments frequently contain much hearsay and other objectionable evidence, and as the 
demeanor of a person upon hearing a criminal charge against himself is liable to great 
misconstruction, evidence of this description oughtto be regarded with muchcaution. " 
(Ph. & Arn. 405, 10th ed., quoted in Roscoe's Criminal Evidence, pp. 53, 54.) 

In any event, in order that silence may be received in evidence against an accused 
as tantamount to an admission of charges against him, it must be shown (a) "either 
that the accused did in fact hear what was said, or was in a position to hear"; (6) 
that "the statements were such as to call for a reply bv him"; and (c) "it must also 



CONFESSIONS. 105 

appear affirmatively that he had an opportunity or right under the circumstances 
of the case to deny the truthfulness of the charges made against him. " (12 Cyc, 421, 
422.) 

According to many authorities ''the fact that one is under arrest and in the custody 
of an officer when he is silent under accusation prevents his silence or the statements 
themselves from being admissible against him, on the ground that under such circum- 
stances he is not called upon to speak." (12 Cyc, 422.) C. M. O. 7, 1911, 7-8. 

23. Sodomy. See File 26251-7121:3. See also Confessions, 7. 

24. Statement of accused — When offense is being investigated, a statement of an 

accused enlisted man, charged with desertion, made by him before his commanding 
officer when his offense is being investigated at the mast, is uniformly admitted in 
evidence when he is tried for the offense. C. M. O. 43, 1906, 2. See also Boards of 
Investigation, 7; Desertion, 123, 125. 

25. Voluntary — A confession must be voluntary to be admissible. See Confessions, 2, 

5, 6, 21. 

26. Warning — It is not necessary to the admissibility of any confession to whomsoever 

it may have been made that it would appear that the accused was warned that what 
he said would be used against him. On the contrary, if the confession was voluntary, 
it is sufficient, though it should appear that he was not so warned. C. M. O. 31, 
1911, 5; 7, 1914, 15; 3, 1916, 7. See also C. M. O. 12, 1904, 4; 14, 1910, 11-12; G. C. M. 
Rec. 21336; 21996; 24224. 

27. Same — With respect to whether a warning is necessary in the case of an accused person, 

the Supreme Court, in Wilson v. The United States (162 U. S., 613, 623), said: 

"And it is laid down that it is not essential to the admissibility of a confession that 
it should appear that the person was warned that what he said would be used against 
him, but, on the contrary, if the confession was voluntary, it is sufficient though it 
appear that he was not so warned. (Joy on Confessions, 45, 48, and cases cited.) " 
Likewise, Greenleaf, in his work on Evidence (15th ed., v. 1, sec. 229), says: 
"Neither is it necessary to the admissibility of any confession to whomsoever it may 
have been made that it should appear that the prisoner was warned that what he said 
would be used against him. On the contrary, if the confession was voluntary, it is 
sufficient, though it should appear that he was not so warned." 
It is also stated in the Cyclopedia of Law and Procedure (vol. 12, p. 463) that— 
"The fact that a voluntary confession is made without the accused having been 
cautioned or warned that it might be used against him does not render it incompe- 
tent unless a statute invalidates a confession made where the accused is not first 
cautioned." 

As there is no statute which is applicable to this matter before naval courts- 
martial, the italicized words indicate the rule governing the case. 

With respect to the first point, therefore, it is evident that the statement or confes- 
sion of the accused was admissible in evidence against him, even though he had not 
been warned that such statements might be used against him. And it may be re- 
garded, in addition, that there is nothing to show that it was obtained by any in- 
ducement or threat; also, that its admission was not objected to by the accused. 
C. M. O. 31, 1911, 5, 6. 

CONFIDENTIAL. See Confidential Publications; Medical Records, 1,3, 4, 5; Oaths, 
20, 47. 

CONFIDENTIAL PUBLICATIONS. 

1. Battle signal book— Officers tried by general court-martial for loss of. C. M. O. 7, 

1916; 8, 1916. 

2. Document— Officer tried by general court-martial for loss of. C. M. O. 20, 1909. 

3. Tactical signal book— Officer tried by general court-martial for loss of. C. M. O. 

12, 1910. 

CONFINEMENT. 

1. Antedating— The department held that the action of a convening authority was in 
error when it approved a sentence involving confinement to take effect from a prior 
date. This was improper; for, whereas it is within the province of the convening 
authority to mitigate sentences of general courts-martial convened by him, and tie 
could in this case, by express terms, have reduced the period of confinement adjudged 
had he so desired, his action in making this confinement date from a pre* ions day 
was irregular and contrary to the provisions of Navy Regulations, 1909, R 17S4 (2) 
[Navy Regulations, 1913, R-81S (2)]. C. M. O. 49, 1910, 15; 21, 1914, 4. S( 8 also ANTE- 



106 CONFINEMENT. 

dating, 3; Confinement, 9; C. M. O. 96, 1902. But see C. M. 0. 13, 1910, where a fleet 
convening authority antedated an officer's sentence involving restriction. 

2. Bad-conduct discharge — And solitary confinement should not be both adjudged in 

the same summary court-martial sentence. File 26287-3483, Sec. Navy, July 17, 
1916. 

3. Begins. See Antedating, 3; Confinement, 1, 9. 

4. Bread and water. See Bread and Water. 

5. Certificate of medical officer — Whenever any person is sentenced for a period exceed- 

ing 10 days to confinement on diminished rations, or on bread and water, there must 
appear oh the record of the proceedings the certificate of the senior medical officer 
under the immediate jurisdiction of the convening authority, to the effect that such 
sentence will not be seriously injurious to the health of the prisoner. (A. G. N. 33; 
R-33.) G. O. 196, Dec. 15, 1875; U. S. Navy Reg. Cir. No. 19, June 4, 1879; C. M. O. 
33, 1909, 2; 49, 1910, 15; G. C. M. Rec. 24595. 

6. Civil courts — A man who has been sentenced by a Cuban civil court to confinement 

for four months can not be confined on board a naval vessel for such length of time 
as punishment for the offense for which he was sentenced, since the authority of the 
commanding officer of a naval vessel to confine a man under sentence not imposed 
in pursuance of any statute or regulation is questionable. File 5128-04. 

7. Same — Pay — An enlisted man of the Navy imprisoned by civil authorities for an 

offense, convicted and withdrawn from the service of the United States, is not enti- 
tled to pay during the term of confinement (2 Comp. Dec. 584; 19 comp. Dec. 226). 
But contra if found "not guilty." Arrest and confinement by civil authorities of a 
man for manslaughter, no bar to receipt of pay, if acquitted by the civil court. File 
2433-96. See alsoC. M. O. 5, 1912, 4-14; 14, 1914, 4-G; 29, 1914, 10; File 3811-04; 609-04. 
See in this connection Carrington v. TJ. S. (46 Ct. Cls., 279.) 

8. Convening authority— If the convening authority, after reviewing the proceedings of 

a summary court-martial, deem that the ends of justice will be subserved by so doing, 
he is authorized to mitigate a sentence of "confinement not exceeding two months" 
to "confinement to the limits of the garrison," but no such power is given to the 
court itself, which must strictly adhere to the statutory form of sentence. C. M. O. 
2, 1912, 11. See also Confinement, 41; Restriction 1, 4. 

9. Date— The term of confinement shall take effect from the date of approval of the sen- 

tence. Should an unusual time elapse between the date of confinement of the accused 
for trial and the date of approval of the sentence, this period may be considered by the 
convening authority in acting upon the case. Should the sentence be to solitary 
confinement, or to confinement on reduced rations, the time of such conditioned 
confinement must be fulfilled unless such provision of the sentence be remitted or 
mitigated by the convening or higher authority. See Antedating, 3; Confine- 
ment, 1. 

10. Deck courts — Are not authorized to adjudge confinement or loss of pay in excess of 

20 days. C. M. O. 24, 1909, 3; 1, 1914, 5. See also Deck Courts, 8. 

11. Same— It is illegal for a deck court to adjudge a sentence which includes both solitary 

confinement on bread and water, and reduction in rating. Where this was done the 
department set aside that part of the sentence relating to reduction in rating in view 
of the fact that when the record of proceedings was received in the department the 
solitary confinement had in all probability been carried into execution. C. M. O. 33, 
1914, 5-6. See also Deck Courts, 49. 

12. Definition— "Confinement," as prescribed by A. G. N. 30, should be in the nature of 

an imprisonment. 

A restraint which includes the placing of a prisoner by himself where he can com- 
municate with no unauthorized persons and not with fellow prisoners, is solitary con- 
finement, and is not properly simple confinement. 

Mere restriction to the limits of a ship is not regarded as being a form of confinement 
Within the meaning of A. G.N. 30. 

As facilities on board ships at shore stations, etc., vary for the execution of sen- 
tences, no precise rule as to how "confinement" shall be executed can be prescribed. 

A. G. N. 30 provides for three kinds of physical restraint: (1) solitary confinement, 
(2) confinement, (3) deprivation of liberty oh shore on foreign-station. File 26806-79, 
J. A. G., Feb. 6, 1912; C. M. O. 23, 1912, 5. See also Summary Courts-Martial, 92. 

13. Deprivation of liberty on shore on foreign station— May not be added to confine- 

ment. C. M. O. 33, 1914, 5. 

14. Discharge, without— Sentences involving confinement at hard labor with correspond- 

ing forfeiture of pay, without discharge, should adjudge forfeiture of only "pay that 
may become due him during said confinemt nt." C. M. < ). 21, 1912, 4. 






CONFINEMENT. 107 

15. Garrison— Confinement to limits of garrison. See Confinement « to ii 

8 K ?? C6rS °° nfined at hard labor - °" M -' °- 173 > MO* 50. M14. See also Hard 

* ^htSfaVat 5rSuWS?Si£S WV^V 'SjS' 
Confinement, 8, 41; Restriction 1 3 6<J,111SU11 - ^- iVi - u - A i»i^, 11. See also 

rfel!F a ^^^^ 

S ' ^oSS^?*-^— °™ "iVdSi rations, etc. 
24. MMshipman-For'' brutal or cruel" haling. Sec Hazing 6 

26. Same— Confined at hard labor. See Confinement, 18 

29 lt D atFe I rfeit a ? d „ a , 0qui "a al ^il authorities. See CwSC't , 

Sa ™^orfe.tureofpay should agree with period of confinement. to Confinement 

& SaS^-^^i ** SaS^ 20 s " "" C0N ™EMENT, 14, 34. 

Martial* 86. * 3J ' 1914 ' 5 - S6C aZw Summary Courts- 



108 CONFINEMENT. 

41. Same — No authority exists to make any departure in the sentence from the express 

terms of the statute, either as to form or extent of punishment. A sentence "to 
be confined to the limits of the garrison for two (2) months" adjudged by a summary 
court-martial is one for which there is no authority of law, and differs from "confine- 
ment not exceeding two months" authorized bv Article 30, A. G. N. File 262S7- 
1020, J. A. G., Dec. 27, 1911. See also Confinement, 8. 

42. "Sweat boxes" — Confinement in. See Sweat Boxes, 1. 

43. Term of— Shall take effect from the date of approval of sentence. C. M. O. 49, 1910, 15; 

21, 1912, 4. See also Antedating, 3; Confinement, 1, 9. 

44. Torpedo boat— Confinement in fireroom of a torpedo boat. C. M. O. 92, 1905, 3. 

45. Unusual. C. M. 0. 10, 1891. 

CONFLICTING ORDERS. C. M. O. 23, 1912, 5-6. See also Orders, 3. 

CONGRESS. 

1. Appeals to— Death gratuity in case of mother who had not been "previously desig- 

nated" by deceased. See Appeals, 2. 

2. Same — Where officer believes his date of commission is erroneous and matter is res 

judicata. See Commissions, 14. 

3. Appointments to office — Congress can not make. See Appointments, 8. 

4. Naval Academy— Policy of Congress to leave the internal administration and discipline 

largely in hands of the officials at the Naval Academy. See Hazing, 6. 

5. Regulations— Congress annulling. See Regulations, Navt, 3, 4, 20. 

0. Same — Approval of regulations by Congress. See Regulations, Navy, 5-9. 

7. Retired naval officer— As Member of Congress. See Retired Officers, 18, 72. 

8. Thanks of Congress — A resolution tendering the thanks of Congress to Vice Admiral 

David G. Farragut, and to the officers, petty officers, seamen, and marines under 
his command, for their gallantry and good conduct in the action of Mobile Bay on 
August 5, 1864. G. O. 73, Feb. 17, 1866. 

9. Same— Effect of vote of thanks by Congress to officers of the Naw. (R. S. 1446, 1465, 

1508, 1509.) See File 27231-10, J. A. G. 

10. Same— Officers of the Navy and other persons who have received a vote of thanks by 

Congress since 1878: 
Henry M. Stanley (explorer), Feb. 7, 1878. (20 Stat. 247.) 
Khedive of Egypt, Jan. 12, 1882. (22 Stat. 377.) 
John F. Slater (for work in uplifting emancipated slaves), Feb. 5, 1883. (22 Stat. 

636.) 
Commodore George Dewey, Mav 10, 1898. (30 Stat. 742.) 
Hon. John Hay (address on Mckinley), June 3, 1902. (32 Stat. 1171.) 
Gen. Horace Porter (for recovering bodv of John Paul Jones), May 9, 1906. (34 

Stat. 829.) File 27231-10, J. A. G., 1910. 

11. Trial of a naval officer — Recommended by Congress — Part of the department's 

action in a general court-martial case of an officer read as follows — This is a case of 
extraordinary and unprecedented character. The facts set forth in the charge and 
specifications were first discovered and disclosed by a congressional investigation. 
The investigation and discovery of similar transactions between other parties led to 
the expulsion of one Member of Congress, the resignation of others, and the passage 
of a resolution by the House of Representatives requesting the Secretary of the Navy 
to convene a court-martial for the trial of the accused for "conduct unbecoming ah 
officer." In compliance with that request this court was convened, and the accused 
has been tried. The case is, therefore, quite unexampled in its origin. It is equally 
so in the character of the accusation preferred. The purchase and sale of appoint- 
ments and commissions are familiar transactions in the army and navy of other 
countries, but are unknown to our military and naval service. * Here every military 
or naval nomination, appointment, or commission should be made and conferred as 
a reward of merit, or as a means of advancing the public interests by opening an 
honorable career to pure and honorable men. 

The Navy Department would not represent faithfully the tone and spirit of the 
Navy, were it less prompt than the House of Representatives to inquire into every 
charge of venality and corruption, or less certain, when discovered, to inflict the 
prescribed punishment upon the offender. 

The Secretary of the Navy, therefore, as requested by the House of Representa- 
tives, convened a court for the trial of the accused officer; a court composed of intel- 
ligent and distinguished officers, all of whom were senior in rank to the accused 



CONGRESS. 109 

and, having produced before that court all procurable proof in support of the charge 
and specifications, it is now called upon to revise its proceedings, finding, and sen- 
tence. This officer was found guilty and sentenced to public reprimand. G. O. 
156, May 24, 1870. See also Naval Academy, 12. 
12. Witness— Under the act of February 16, 1909, sections 11 and 12 (35 Stat. 621, 622), a 
court of inquiry is empowered to subpoena a Representative attending a session of 
Congress, but if he refused to appear, he could not be compelled to do so owing to 
the fact that under Article I, section 6, clause 1 of the Constitution he would be privi- 
leged from arrest for the misdemeanor so committed. In this case the witness stated 
he would appear voluntarily without a subpoena. Accordingly the court decided 
to withdraw the subpoena, and the Representative thereupon voluntarily appeared 
and testified. Ct. Inq. Rec. 5203, pp. 1281-1286, 1293-1294, 1339-1343, 1363-1365, 1422. 

CONSCIENCE FUND. 

1. Effect and status of — Congress has never authorized the "conscience fund" which has 

been created by the Treasury Department, and any funds contributed thereto proba- 
bly would be returnable to the person (or his heirs) contributing thereto, although it is 
possible that the courts would give legal effect to the custom of receiving funds, such 
custom having continued many years, not being in conflict with any express pro- 
vision of law on the subject. File 13673-1442: 1, J. A. G., Jan. 13, 1912. 

2. Pay— Officer returning pay to Treasury. See Leave of Absence, 6. 

CONSCRIPTION OR DRAFT. 

1. Exemption from— Of former enlisted men. File 13673-3141:2 July 14, 1916. 

CONSTITUTION OF THE UNITED STATES. 

1. Amendments— Fifth amendment. C. M. O. 7, 1914, 6; 29, 1914, 10, 15. 

2. Same— Sixth amendment. C. M. O. 49, 1910, 4; 55, 1910, 8; 15, 1910, 9; 17, 1910, 10; 

10, 1915, 6. 

3. Article I, Sec. 9, clause 8.- C. M. O. 35, 1915, 11. 

CONSTITUTIONAL LAW. See also Jeopardy, Former, 5. 

1. Accused— Privileges and immunities of. See Constitutional Rights of Accused. 

2. Civil authorities— Jurisdiction of. See Civil Authorities; General Order No. 121, 

Sept. 17, 1914. 

3. "Due Process." See Debts, 18; Due Process of Law; Naval Examining Boards, 

10; Promotion, 64. 

4. Power to provide a Navy— The power to formulate Articles for the Government of the 

Navy and punish individual officers for violation thereof is conferred upon Congress by 
Article I, section 8, clause 14; the power to provide what persons may be appointed 
or enlisted in the naval service, the qualifications they must possess, and the total 
number of the entire force is conferred by the clause authorizing Congress "to provide 
and maintain a Navy." Statutes passed under the first clause mentioned are penal 
and are to be enforced by courts-martial; those passed under the second clause are 
enacted in the interest of the Navy at large and are to be administered by the Presi- 
dent, either alone or with the aid of examining boards or such other instrumentalities 
as may be determined upon by Congress. Persons excluded from appointment, for 
iack of any required qualification— health, age, nationality, height, temperament, or 
any other condition that Congress might see fit to impose— are not being punished 
under penal laws for their failure to measure up to the necessary requirements, but are 
merely incidentally affected by the Government's policy, as defined by Congress in 
the exercise of its undoubted right to say who shall and who shall not be appointed 
to the naval service. File 20260-1392, June 29, 1911, pp. 24^-25. 

"The discretion of the President as commander in chief of the Navy, to make such 
dispositions of the personnel and material of the naval service as to* him may seem 
advisable, is, of course, subject to legislative restrictions by Congress enacted under its 
constitutional authority to 'provide and maintain a navy."' File 4670-47, J. A. G , 
Nov. 23, 1910, p. 5. 

5. State interference— The principle that no State has the right to interfere with the 

instrumentalities of the Federal Government has been recognized from the earliest 
days of our Governmert. File 6769-21, J. A. G., July 19, 1911; 26524-54, Feb. 12, 1914. 
See also Jurisdiction, 118. 

6. Same— Inspection of battleships. Sec File 611S-3, Nov. 22, 1907. 

7. Same— Quarantine charges. See File 3983, Mar. 5, 1906; 6118-2, Doc. 29, 1906: 25 Op 

Atty. Gen. 234. But see 13 Comp. Dec. 672. 

8. Same— Exemption of civil employees from jury dutv. Sec File 21090-;;. Sept. 3. 1908; 

20 Op. Atty. Gen. 618. See also Jury, 1. 



110 CONSTRUCTIVE PARDON. 

CONSTITUTIONAL RIGHTS OF ACCUSED. 

1. Counsel— Article VI of the amendments to the Constitution provides that "in all 

criminal prosecutions" the accused shall "have the assistance of counsel for his 
defense." Though the reference here is to prosecutions before criminal courts of the 
United States, naval courts, though not bound by the letter, are within the spirit of 
the provision. 

Therefore, where an accused goes on record as being desirous of having the assistance 
of counsel in conducting his defense, and is denied that right, except where it is 
impracticable to obtain counsel, such denial constitutes a fatal irregularity, and the 
improper procedure of designating the judge advocate to act in that capacity does not 
offset this irregularity nor fulfill the reauirements of the law. C. M. 0. 49, 1910, 14; 
55, 1910. 8. 

2. Crimination. See Self Incrimination. 

3. Cross-examination— Of witnesses against him. See Constitutional Rights of 

Accused, 16. 

4. Cruel and unusual punishment— "Sentences must be neither cruel or unusual, and 

must be in accordance with the common law of the land and customs of war in like 
cases." (R-S15.) "Offenses not provided for herein [Limitation of Punishment] 
remain punishable as authorized by the Articles for the Government of the Navy, as 
amended by the acts of May 13, 190S; February 16, 1909;" Aug. 29, 1916. (R-900 (2.) 

5. Double jeopardy. See Jeopardy, Former. 

6. Due process of law. See Debts, 18; Due Process of Law; Promotion, 64. 

7. Jeopardy. See Jeopardy, Former. 

8. Jury trial— Not required. See Jury, 6. 

9. Offenses defined, etc.— In short, the whole proceeding would be repugnant to the con- 

stitutional safeguards, the spirit of which is that offenses and their punishment should 
be defined and fixed in advance of the doing of the wrongful act. C. M. O. 21, 1910, 9. 

10. Presence during trial. See Accused, 1-9. 

11. Presentment and indictment by grand jury. See Constitutional Rights of 

A-CCUSED IS 

12. Public trial. See Court, 127; Public Trial. 

13. Safeguards— The contention that the constitutional safeguards and limitations apply 

to officers and enlisted men of the Navy with the single exception of presentment and 
indictment by grand jury is fully refuted in Ex parte Milligun (4 Wall. 2, 137.) File 
26260-1392, 697. J. A. G., June 29, 1911, p. 29. 

14. Self-incrimination. See Self Incrimination. 

15. Speedy trial. See Court, 127; Speedy Trials. 

16. Witnesses— Confrontation and cross-examination— It is the right of an accused to be 

confronted by witnesses against him, and afforded an opportunity to cross-examine 
them upon the evidence they may give in the case. C. M. O. 47, 1910, 9; 49, 1910, 9, 
10; 15, 1910, 9; 17, 1910, 12; 21, 1910, 16. See also C. M. O. 224, 1902; 37, 1909, 8, 9; 47, 
1910, 65, 1916, 5; False Swearing, 5; Depositions, 9. 

17. Same — Compulsory process of obtaining— Article 6 of the amendments to the Consti- 

tution of the United States provides that an accused, in all criminal prosecutions, 
shall enjov the right to have compulsory process for obtaining witnesses in his favor. 
The propriety of this provision is clearly manifest and is beyond question. (Story 
on the Constitution, 5th ed., vol. 2, 572, 573.) 

Although the reference in the sixth amendment is to criminal courts of the United 
States only, military courts, though not bound by the letter, are within the spirit 
of the provision. Therefore, when an accused goes on record as desiring the attend- 
ance of certain witnesses and requests a postponement of the trial to permit him to 
secure them, unless it be shown to have been impracticable to accede to that request 
and secure the desired witnesses, the noncompliance with this provision would con- 
stitute a grave error. C. M. 0. 17, 1910, 9. See also C. M. O. 47, 1910, 5-6; 49, 1910, 10. 

The act of Congress approved February 16, 1909 (35 Stat. 621, 622), provides that a 
naval court-martial or court of inquiry shall have power to issue like process to compel 
witnesses to appear and testify which United States courts of criminal jurisdiction 
within the State, Territory, or district where such naval court shall be ordered to sit 
may lawfully issue. 

CONSTRUCTION OF STATUTES. See Statutory Construction and Interpreta- 
tion. 

CONSTRUCTIVE PARDON. Sec Desertion, 41; Pardons, 44. 



CONTRIBUTORY NEGLIGENCE. Ill 

CONSTRUCTIVE SERVICE. 

1. Officers— Six years constructive service for the purposes of precedence was allowed 

staff officers of the Navy by section 1486, Revised Statutes. Five years constructive 
service for longevity pay was allowed officers of the Navy appointed from civil life 
by the Navy personnel act of March 3, 1899. (30 Stat. 1004. )The naval appropria- 
tion act of March 4, 1913 (37 Stat. 899), provided that the above provisions of section 
1486, Revised Statutes, and act, March 3, 1899, should not apply to any person enter- 
ing the Navy "after the passage of this act." File 11130-30:1, J. A. G., May 4, 1916. 
See also File 26255-95:1, J. A. G., Apr. 6, 1910; 11130-9, J. A. G., July 18, 1910. 

CONSULAR OFFICERS. 

1. Orders to— Officers of the naval service. See Diplomatic Officers, 2. 

2. Retired naval officers— Appointment as. See Diplomatic Officers, 1,3; Retired 

Officers, 18, 26. 

CONTEMPT OF COURT. 

1. Deck courts— In cases of contempt the court shall report the facts to the convening 

authority for such disciplinary action as may be appropriate. 

2. General court-martial — During the progress of a general court-martial trial the ac- 

cused was adjudged guilty of contempt, on account of refusing to answer a certain 
question propounded by the court, and he was thereupon sentenced "to be impris- 
oned in such place as the Secretary of the Navy may designate for a period of two 
months." In view, however, of the fact that there was a doubt, owing to the con- 
flict of authorities on the subject, as to whether the accused in the case was properly 
found guilty of contempt, particularly as the proceedings subsequent to those in con- 
tempt seem to show that the accused misunderstood the import of the question 
above referred to, the department directed that the sentence imposed for contempt 
be merged in that awarded for the offense of which the accused was convicted under 
the charge preferred against him. C. M. O. 234, 1902. See also G. C. M. Rec. 29475, 
p. 16; Navy Regulations, 1913, R-42; R-724. 

3. Same — "Indecorous and disrespectful conduct of the accused toward the court while 

on trial." G. 0. 157, May 24, 1870. 

4. Officer arrested by civil authorities— An officer at home awaiting orders was served 

with subpoena requiring him to appear in a civil court, and disregarded it. He was 
publicly arrested for contempt of court. C. M. O. 24, 1885. 

5. Summary courts-martial— Are without power to punish for contempt of court. 

Where a summary court-martial punished the recorder for contempt, the department 
set its action aside. File 4549-02, June 25, 1902; 22400, 1897. See also File 1020-05. 
Mar. 8, 1905. See Jeopardy, Former, 3 (p. 297, line 3), for Contempt of Court 
of Inquiry. 

6. Same— In cases of contempt the court shall report the facts to the convening authority 

for such disciplinary action as may be appropriate. 

7. Witnesses —If the witness refuses to answer a question, the judge advocate may request 

the court to require the witness to answer on the ground that the answer would not tend 
to criminate him, or would not tend to degrade him, or, admitting that the answer 
would degrade him, that the question which the witness declined to answer was as to 
a subject which is material to the issue on trial and must be answered. If the court 
sustains the judge advocate, the witness must answer or be in contempt. C. M. O. 
29, 1914, 13. 

CONTINUANCES. 

1. Accused requests— Court should grant a continuance if grounds for request are reason- 
able and it is practicable to do so. C. M. 0. 17, 1910, 10; G. C. M. Rec. 22012. See also 
Army, 13; Constitutional Rights of Accused, 17; Counsel, 20; Court, 134; 
Postponement; Trials, 7. 

CONTINUING OFFENSES. 

1. Desertion— Is a continuing offense. C. M. O. 31, 1910, 5; File 5256-04. See also De- 

sertion, 35. 

2. Fraudulent enlistment — Is not a continuing offense. C. M. O. 31, 1910, 5; File 5256- 

04; 1551-04. See also Fraudulent Enlistment, 20; C. M. O. 17, 1916, 6, line 36. 

CONTINUOUS-SERVICE CERTIFICATE. C. M. O. 42, 1915, 2; FRAUDULENT EN- 
LISTMENT, 36. 

CONTRIBUTORY NEGLIGENCE. See Manslaughter, 11,12. 
50756°— 17 8 



112 CONVENING AUTHORITY. 

CONVENING AUTHORITY. 

1. Accused — Right of accused to a copy of action of. See Record of Proceedings, 32. 

2. Action of— Importance of— Where a convening authority of a summary court-martial 

who was also the senior officer present did not, in subscribing his action upon the 
record, add to his title the words, " Senior Officer Present" as required by Article 32 
of the Articles for the Government of the Navy, and Navy Regulations, 1913, R-620 
(4). the department stated in part: 

"The approval of the senior officer present is necessary before the sentence can 
have any legal effect, and it must be shown affirmatively. It is not sufficient that 
his approval be shown inferentially or argumentatively. 

"The importance of the action of a reviewing officer is shown by the following 
words of the Attorney General, quoted with approval by the United States Supreme 
Court: 'And the act of the officer who reviews the proceedings of the court, whether 
he be commander of the fleet or the President, and without whose approval the sentence 
can not be executed, is as much a part of this judgment, according to law, as is the 
trial or sentence.' (Runkle v. U. S., 122 U. S. 558; 11 Op. Atty. Gen. 21.)" File 
26287-2584, Sec. Navy, Jan. 27, 1915; C. M. O. 6, 1915, 5. 

An enlisted man was tried by summary court-martial and sentenced to forfeiture of 
pay and bad-conduct discharge. The record disclosed that the convening authority 
was also the senior officer present and took separate actions thereon; that is, he acted 
on the case as convening authority and also took separate action thereon as senior 
officer present. Navy Regulations, 1913, R-620(4) provides: "If the convening author- 
ity approves the whole or any part of the sentence adjudged, he shall transmit the 
record to the commander in chief] or in his absence to the senior officer present. Should 
no officer senior to himself be present, he shall, in subscribing his action upon the 
record, add to his title the words 'Senior Officer Present.'" This one action is thus 
made to serve a double purpose in such cases. (See C. M. O. 6, 1915, p. 5.) C. M. O. 
12, 1915, 5. See also Summary Courts-Martial, 38. 

For action in revision see Revision, 10. 

A conviction, upon trial by court-martial, is not complete until the findings and 
sentence have been approved by the proper reviewing authority. File 26251-1963:1 , 5. 
A. G., Aug. 17, 1910, p. 1. See also Reviewing Authority, 11, 19. 

That the approval of the convening authority is necessary to the validity of the 
proceedings of a court-martial is, it is true, too well settled to admit of doubt. (20 
A. E. Ency., 2d ed., 656- In re Esmond, 5 Mackey (D. C.) 64; 19 Op. Atty. Gen. 107.) 
File 26251-1963:1, J. A. G., Aug. 17, 1910, p. 9. 

The convening authority is the reviewing authority, except where the sentence is 
death or the dismissal of a commissioned or warrant officer. (A. G. N. 53.) See 
Criticism of Courts-Martial, 35. 

3. Approval that accused might not entirely escape punishment. See Approval 

ONLY THAT ACCUSED MIGHT NOT ENTIRELY ESCAPE PUNISHMENT. 

4. Arrest — Where it is the proper action the convening authority should release the 

accused from arrest and restore him to duty, and where such does not appear from the 
record the department will so direct in the following words: "As it does not appear 
on the record of the general court-martial in the foregoing case of Lieutenant (junior 
grade) * * * U :>. Navy, that he has been ordered to be released from arrest, such 
action will tc taker o restore him to duty as may be necessary." C. M. 0. 13, 1914; 
40, 1915; 14, 1916. See also C. M. O. 32, 1915, which is in error. 

5. Binding of court-martial records — Convening authority responsible. See Binding 

of Court-Martial Records. 

6. Changing action ol—Held, That as a reviewing authority (Senior Officer Present) 

can not change his action upon a summary court-martial after such action has been 
promulgated and the accused duly notified, it would be improper for the successor in 
office of such Senior Officer Present to do what the original reviewing authority could 
not do. 

But if the proceedings have not been published nor accused notified, it would be 
proper for such successor in office to take any further action upon a case as might seem 
to him necessary. File 26287-1121. J. A. G., Feb. 24, 1912. 

7. Charges and specifications — Convening authority should follow prescribed forms. 

See Charges and Specifications, 15, 43, 44, 47, 48, 53. 

8. Same— Time and place of signing by convening authority should be stated. C. M. O. 

159, 1897, 2; 160, 1897, 2. 



CONVENING AUTHORITY. 113 

9. Same — Convening authority, members and judge advocate or recorder, responsible 
for correctness of charges* and specifications. See Charges and Specifications, 
33, 34. 

10. " Commander Cruiser Squadron and Commander in Chief Detached 

Squadron" — As convening authority of general courts-martial and courts of in- 
quiry. C. M. O. 6, 1915, 9. See also C. M. O. 17, 1915; 40, 1915; 46, 1915; 48, 1915. 
See also Convening Authority, 28. 

11. '* Commanding officer, Fourth Division Atlantic Fleet Battalion, U. S. Marine 

Corps"— Can not convene summary courts-martial. C. M. 0. 12, 1915, 6. See also 
Summary Courts-Martial, 23. 

12. Commuting sentences. See Commuting Sentences. 

13. Confinement reduced. See Confinement, 34. 

14. Counsel for judge advocate— Appointed by convening authority. See Judge Ad- 

vocate, 45. 

15. Courts of inquiry. See Convening Authority, 27; Courts of Inquiry, 10. 

16. Date of action. See Antedating, 3; Confinement, 1, 9. 

17. Deck courts. See Deck Courts, 4, 10, 13, 14, 58. 

18. Delegation of powers— The powers of the convening authority as reviewing officer 

cannot be delegated. See Criticism of Courts-Martials, 35. 

19. Depositions — Necessity of approval by convening authority. See Depositions, 3. 

20. Desertion — Convening authority remitted dishonorable discharge in a case of deser- 

tion. See Dishonorable Discharge, 11. 12. 

21. Disapproval— Of the entire proceedings of a naval court-martial leaves nothing to 

support an approval of the sentence. If the entire proceedings are devitalized by 
a disapproval, they retain no force to sustain the finding and sentence predicated 
thereon. 16 J. A. G., 79. See also CM. 0.31,1911,3-4; Reviewing Authority, 20. 

22. Dishonorable discharge— If dishonorable discharge in the case of marine is remitted 

the forfeiture of allowances should also be remitted. See Allowances, 4. 

23. Evidence, unobjected to— Convening authority should not notice. See Evidence, 

82, 83, 84, 125; Reviewing Authority, 9. 

24. Exemptions in sentences. See Exemptions in Sentences. 

25. Exercise of accused — Convening authority (fleet) approved the proceedings, findings, 

and sentence and directed that the accused "will be confined as a prisoner on board 
ship, with one hour's exercise on deck, under charge of a sentry, every day," etc. 
C. M. O. 57, 1895, 2; 58, 1895, 2. Note.— A convening authority should use the 
authorized forms of action. 

26. Forms of action— Under G. 0. 110 and 1-4893. See General Order No. 110, July 

27, 1914, 3-5, 7. 

27. General courts-martial— General courts-martial may be convened by the President, 

by the Secretary of the Navy, by the commander in chief of a fleet, or squadron, and 
by the commanding officer ot any naval station bevond the continental limits of the 
"United States. (Art. 38, A. G. N., R-38; act of Feb. 16, 1909, sec. 10, 35 Stat., 621; 
"Forms of Procedure, 1910," pp. 51 and 54.) See C. M. 0. 14, 1910, 17. 

The above provision of law was amended by the following provision of the act of 
August 29, 1916 (39 Stat., 586): 

When empowered by the Secretary of the Navy general courts-martial may be con- 
vened by the commanding officer of a squadron, of a division, of a flotilla, or of a larger 
naval force afloat, and of a brigade or larger force of the naval service on shore bevond 
the continental limits of the United States: Provided^ That in time of war, if then so 
empowered by the Secretary of the Navy, general courts-martial may be convened by 
the commandant of any navy yard or naval station and by the commanding officer 
of a brigade or larger force of the Navy or Marine Corps on shore not attached to a 
navy yard or naval station. 

28. Same— An officer commanding a cruiser squadron, U. S. Atlantic Fleet, on detached 

duty, under proper orders, and while actually in command of that squadron for the 
duty assigned, is authorized, for the purpose of convening general courts-martial and 
courts of inquiry and issuing such orders as necessary in relation thereto, and in 
reviewing records thereof, to sign in the above-mentioned cases as follows: "Com- 
mander of Cruiser Squadron, and Commander in Chief, Detached Squadron, U. S. 
Atlantic Fleet." File 26504-43: 5, Sec. Navy, Dec. 21, 1914; C. M. O. 6, 1915, 9. See 
also C. M. O. 17, 1915; 40, 1915; 46, 1915; 48, 1915. 

29. Same — Convening of, on foreign territory. See Jurisdiction, 53, 54. 



114 CONVENING AUTHORITY. 

30. Same — From the records of proceedings in a number of general court-martial cases 

received in the department, it was noticed that the commander of one of the squadrons 
of the Navy signed the precept convening the court, and also his action as reviewing 
authority in each case, as "Commander, Squadron." 

After careful inquiry into the status of the squadron commander above referred to 
the department is of opinion that he is de facto commander in chief of said squadron; 
and, as such, authorized by law to convene general courts-martial. The fact that he 
signed the precept convening the court and bis action as reviewing authority in each 
case, as commander rather than commander in chief, though irregular and not 
sanctioned, was held by the department not to invalidate the proceedings. 

This officer was subsequently directed to sign as commander in chief all documents 
pertaining to general courts-martial. C. M. 0. 14, 1910, 17. 

A convening authority who was in fact a commander in chief, signed himself as 
"Commanding the U. S. Naval Forces on the South Atlantic." The department 
held that while the method of signing as "commander in chief" is by far preferable, 
it is not a fatal defect for an officer who is in fact a commander in chief to sign 
as above. C. M. 0. 18, 1897, 2-3. But see Charges and Specifications, 91. 

Held: That an officer may convene general courts-martial and courts of inquiry, 
signing as "commander in chief, U.S. naval force in San Domingan waters." Simi- 
larly for other commanders of squadrons when separated from the commander in 
chief, as "commander in chief, U. S. Naval Force in Venezuelan waters," or "Medi- 
terranean Sea"— wberever he may happen to be. 13 J. A. G., 451, May 1, 1905. 

31. Same — Where the Navy Regulations provided that rear admirals and commodores 

may command fleets and squadrons but not captains, and a captain was ordered as 
"Commander in chief" of a squadron, the fact that he was a captain did not make 
illegal general courts-martial convened by him since the Navy Regulations in this 
respect were held to be directory in character rather than mandatorv. C. M. 0. 18, 
1897, 3. 

32. Same — The convening authority alone is empowered to make changes in the constitu- 

tion of general courts-martial and orders given by any other authority appointing or 
relieving members or judge advocates are without authority of law. C. M. O. 68, 
1898; 125, 1900, 1-2; 34, 1901; 49, 1910, 11. See also Court, 35, 37-49. 

33. General Order No. 110. See General Order No. 110, Julv 27, 1914, 3^5, 7. 

34. 1-4893. See General Order No. 110, July 27, 1914, 3-5, 7. 

35. Joining charges. See Joinder, Trial in. 

36. Judge Advocate — Responsible to convening authority for proper discharge of his duties 

See Judge Advocate, 60. 

37. Same— Coimsel for judge advocate should be appointed by convening authority. See 

Judge Advocate, 45. 

38. Members of court — Convening authority should not detail himself as a member of a 

court. See Court, 36. 

39. Mitigating sentence — Form for— In several cases received from the fleets and foreign 

stations, it has been observed that the convening authority in mitigating the adjudged 
punishment failed expressly to provide for a corresponding reduction in hard labor and 
forfeiture of pay (and allowances), necessitating such action by the department. 
The following phraseology is suggested for use in such cases: 

" The proceedings, findings, and sentence of the general court-martial in the foregoing 
case of are approved, but, in view of the period of confinement, with cor- 
responding hard labor and forfeiture of pay (and allowances) is reduced to " 

CM. 0.21.1912,5. 

40. Nature and effect of action. See Convening Authority, 2. 

41. Numbers, loss of — Action on general court-martial, where it is desired to place officer 

at foot of list and there lose numbers. See Numbers, Loss of, 10. 

42. Oath— Summary court-martial — Official inquiry by convening authority will author- 

ize members to disclose vote or opinion of members. See Oaths, 47. 

43. Plea in bar— Convening authoritv may not compel a court to reverse its judgment. 

See Reviewing Authority, 15, 16. 

44. Precept— Original precept should be forwarded to convening authority when court is 

dissolved. See Precepts. 23. 

45. Prejudice of convening authority is immaterial— The question of prejudice, real 

or supposed, on the part of the convening authoritv may be eliminated. The accused 
is tried, not by the convening authoritv, but by the court. 13 J. A. G.324, June 11, 1904. 

46. Probation— Action regarding probation. C. M. O. 15, 1910, 4-5; 17, 1910, 5-6; 21, 

loin, ii-i?: i. 1010 4 $ fe a1xo general Order No. 110, July 27, 1914; Naval 
Instructions, 1913, 1-4893; Probation. 



CONVENING AUTHORITY. 115 

47. Same— Reports of probationers. See Probation, 17. 

48. Qualified approval— Inasmuch as unqualified approval by the department would be 

equivalent to an assertion by it that officers of the naval service may use Government 
coal for private purposes without violating law, regulation, or propriety, the claim 
being based upon an ingenious construction of recent appropriation acts, it is deemed 
most important that the department should qualify its approval by stating that the 
construction placed upon the appropriation act by counsel for the accused, and appar- 
ently accepted by the court, is not tenable. C . M. . 88, 1895, 15. 

49. Same— The proceedings and the finding upon the first charge and its specification are 

approved; the finding upon the second charge and the specification thereunder is 
disapproved; and the sentence, though manifestly inadequate as a punishment for the 
offense committed, and by no means such as will exercise a wholesome influence upon 
the discipline of the naval service, is approved only in view of the fact that the exigen- 
cies of the service render it impracticable to reassemble the court. C. M. . 3, 1898, 1. 

50. Bank, reduction in— In some cases where the accused (officer) was sentenced to 

dismissal, the Secretary of the Navy in submitting the case to the President for his 
action, recommended that the accused be "reduced in rank," meaning reduction in 
rank by loss of numbers, and the President took such action. C. M. O. 35, 1892, 11. 
See also C. M. 0. 18, 1897,5; Commuting Sentences, 4. 

51. Reconvening court— Convening authority desired to reconvene court because of 

inadequacy of sentence, but did not do so owing to the fact that the ship was about to 
sail, etc. C. M. O. 11, 1912, 2. See also Convening Authority, 49; Court, 146. 

52. Same— Reconvening dissolved court. C. M. O. 4, 1914. See also Court, 69, 71. 

53. Record of proceedings. See Revision, 9. 

54. Reprimand of court — Authority to. See Criticism of Courts-Martial, 35. 

55. Restoration to duty on probation— After approving the case. C. M. O. 17, 1910, 

5-6; 1, 1912, 4. See also Probation, 15. 

56. Revision — Action on proceedings in revision. See Revision, 10. 

57. Secretary of the Navy— Action of as convening authority. See Convening Au- 

thority, 2; Secretary of the Navy, 24, 27, 32, 33, 54. 

58. Senior officer present— Form of action where convening authority and senior offi- 

cer present is the same officer. C. M. O. 6, 1915, 5; 12, 1915, 5. See also Convening 
Authority, 2; Senior Officer Present, 6. 

59. Same— Supplying members for summary courts-martial. See Summary Courts- 

Martial, 48. 

60. Sentence— Excessive — The approval of a sentence in which the period of confine- 

ment adjudged by the court-martial exceeds the limitation to punishment applies 
only to so much of the sentence as is within the prescribed limitation and is void 
ab initio as to the excess. G. C. M. Rec. 23271. See also Excessive Sentences, 
2, 3, 5. 

The convening authoritv can not dictate to the court what sentence to adjudge. See 
Criticism of Courts-Martial, 36. 

61. Same— Commuting sentences. See Commuting Sentences. 

62. Same— Remission or mitigation after final action on— A convening authority is not 

authorized to remit or mitigate the sentence after having once acted thereupon. 
(See 19 Op. Atty. Gen. 106.) Accordingly where such was done, held, this action is 
"illegal and ineffectual to remit either the confinement or the loss of pay imposed by 
the court in this case." File 26262-1246:1, Sec. Navy, Dec. 29, 1911. Seealso C. M. O. 
1, 1912, 3, 4; Secretary of the Navy, 56. 

63. Signature of— Must show authority to convene. C. M. O. 14, 1910, 17. See also 

Charges and Specifications, 91; Convening Authority, 28-31. 

04. Summary courts-martial. See Reconvening, 16; Summary Court-Martial, 18, 
21-23. 

65. Threat of undesirable discharge— The convening authority, in his remarks upon 
the proceedings, recommended that execution of the sentence be suspended for six 
months with a view to an entire remission thereof at the expiration of the proba- 
tionary period, provided the conduct of the accused so warrants; otherwise, that l ho 
sentence be executed and that upon its completion the accused be discharged as 
"undesirable" for the naval service. 

So much of the convening authority's action as refers to an "undesirable ' ' d ischarge 
is without authority, and, were his recommendation in connection therewith ap- 
proved, a punishment in excess of that provided for by the court's judgment would 
be held over the accused during the probationary period. 



116 CONVENING AUTHORITY. 

66. Unobjected to evidence— Con vening authority should not notice. See Evidence, 82, 

83, 84; Reviewing Authority, 9. 

67. Warrant officers— May convene summary courts-martial if actually in command of 

a naval vessel. See Court, 196; Summary Courts-Martial, 105. 

68. Same— May convene deck courts if actually in command of a naval vessel. See 

Deck Courts, 4. 

CONVENING OFFICER. See Convening Authority. 
CONVENING ORDER. See Deck Courts, 15; Precepts. 

CONVICTS. 

1. Discharged as undesirable — And turned over to civil authorities. See Civil Au- 

thorities, 12. 

2. Enlistment in naval service— It is a long established policy of the Navy not to enlist 

men who have been convicted by civil courts. For similar reasons the department 
invariably refuses to retain in the naval service enlisted men who are convicted by 
civil courts of offenses which render them unfit for the service. (See C. M. O. 42, 1915, 
p. 6; 35, 1915, p. 8.) File 26524-222: 3, Sec. Navy, Feb. 9, 1916; C. M. O. 5, 1916, 7. 
See also File 26524-215, Sec. Navy, Dec. 8, 1915. 

" No person who has been convicted of crime or is of known bad character shall be 
enlisted." (R-3686.) File 7657-396, Sec. Navy, Sept. 15, 1916. 

3. " Escaped convict"— Should not be enlisted. File 26524-215, Sec. Navy, Dec. 8, 1915. 

See also Civil Authorities, 12; Fugitive from Justice, 2. 

CONVICT LABOR. 

1. Laws— Relating to. See File 12494-81. 

COPIES, CERTIFIED. See Certified Copies; Evidence, Documentary. 

COPIES OF RECORDS. See Certified Copies; Civh Courts, 2; Courts of Inquiry, 
12; General Order No. 121. September 17, 1914, 23; Medical Records; Records 
of Officers; Reports on Fitness; Records of the Department. 

CORONERS. 

1. Inquests— Jurisdiction of coroners to hold inquests on naval territory. See Jurisdic- 
tion, 22-24. 

CORONER'S INQUEST. 

1. Confession— Statements of accused before coroner's inquest. See Confessions, 10. 

CORPORATIONS. 

1. Retired officers— Employment by. See Retired Officers, 28, 31. 

CORPSE, DISPOSITION OF. See Disposition of Bodies. 

CORPUS DELICTI. 

1. Application of doctrine— This doctrine applies particularly to such offenses as homi- 

cide, and the strictness of the rule is relaxed in minor offenses. 

" The rule with regard to proof of the corpus delicti, apart from the mere confession 
of the accused, proceeds upon the reason that the general fact without which there 
could be no guilt, either in the accused or in anyone else, must be established before 
anyone could be convicted of the perpetration of the alleged criminal act which caused 
it, as in cases of homicide the death must be shown, in larceny it must be proved that 
the goods were lost by the owner, and in arson that the house had been burned; for 
otherwise the accused might be convicted of murder when the person alleged to be 
murdered was alive, or of larceny when the owner had not lost the goods, or of arson 
when the house was not burned. But where the general fact is proved the foundation 
is laid and it is competent to show by any legal and sufficient evidence how and by 
whom the act was committed, and that it was done criminallv." (Samj). State, 33 
Mass. 347.) C. M. O. 26, 1910, 10. See also File 26251-7121:3, December, 1912. 

2. Fraudulent enlistment— The prosecution put in evidence a confession by the accused 

regarding his at;e, which was ordered stricken out by the court as not admissible until 
the corpus delicti had been proved by other evidence. This ruling was erroneous. 
The doctrine that the corpus delicti must be established before conviction — that is. 
that the prosecution must show "the substantial fact that, a crime has been com- 
mitted by some one" before the person accused can be convicted — grew out of the 



CORPUS DELICTI. 117 

dealings of the courts with such offenses as homicide, arson, burglary, theft, and the 
like, as is found by a mere reference to the authorities and adjudicated cases; and it 
appears that the civil courts have recognized the fact that the strictness of the rule is 
relaxed in the cases of minor offenses where from the nature of things it is imprac- 
ticable otherwise than by presumption to show that an offense has been committed. 
(Bouvier's Law Dictionary, 1897, vol. 1, p. 446.) The subtle technicalities of the 
English common law should not be introduced into the procedure of general courts- 
martial without carefully observing the limitation by which their application is de- 
fined, and they should never be so used as to confuse procedure and defeat administra- 
tion of justice. The main facts of the present case were established by oral testimony 
and by the enlistment record of the accused, and it remained only for the members 
of the court, acting in their capacity as jurors, to find upon the question whether or not 
the accused was under age at the time of enlistment. The proper rule in such cases is 
laid down in the American and English Encyclopaedia of Law, 1888, volume 4, page 
309, under the title "Corpus delicti," as follows: 

"It is sufficient that there be such extrinsic corroborative circumstances as will, 
taken in connection with the confession, produce conviction of the defendant's guilt 
in the minds of the jury." C. M. O. 94, 1905, 1. 

3. Proof of— Must be proved in proper case before a confession is admissible. C. M. 0. 94, 

1905, 1; 42, 1909, 6; 17, 1910, 4; 26, 1910, 10. See also File 26251-7121:3; Confessions, 5. 

4. Sodomy. See File 26251-7121:3. 

CORRECTIONS. See also Alterations; Amendments. 

1. Charges and specifications. See Charges and Specifications, 33, 34. 

2. Clerical errors — On revision. See Record of Proceedings, 26, 27. 

3. Names. C M. O. 12, 1915, 10; 16, 1915, 6; 20, 1915, 7. See also Name, Change of. 

4. Record — No corrections should be made in original record in proceedings in revision. 

C M. 0. 47, 1910, 5; 17, 1910, 5; 5, 1911, 5; 5, 1912, 14; 5, 1914, 9. See also Accused, 8; 
Record of Proceedings, 26. 

5. Same— Where record of proceedings correctly reports the proceedings which actually 

occurred, it can not properly be "corrected" so as to record a different state of facts. 
C. M. O. 51, 1914, 9. See also C. M. O. 14, 1910, 10. 

6. Records of the department. See Records of the Department. 

CORRESPONDENCE. See also Designations. 

1. Official — Official correspondence between officers of the naval service and officials of 

the public service must be courteous in tone and free from any expressions of a per- 
sonal nature. File 24482-34, J. A. G., May 1, 1911, p. 3. See also Officers, 69. 

2. Same — Irregular interpolation of personal opinion and information is not only con- 

trary to the United States Navy Regulations, but tends to create dissension mili- 
tating against the efficiency of the naval service. File 6833, Mar. 1, 1907; 875-6, Mar. 
28, 1907. 

3. Titles. See Designations. 

CORROBORATIVE TESTIMONY. See Evidence, 33-35. 

COUNSEL. 

1. "Able counsel" — Accused represented at his trial by. C. M. O. 6, 1915, 6. 

2. Absence of — If the counsel for the accused is absent at any time during the proceed- 

ings, the record should show affirmatively that the accused waived his privilege of 
havmg his counsel present during that time. C. M. O. 42, 1909, 6. See also G.C. M. 
Rec. 30684, p. 301. 

3. Accused— Unreasonable demand for civilian counsel. See Counsel, 20. 

4. Accused advised of right to — When the accused has no legal adviser, the comman- 

dant of the navy yard or station, the commander in chief, or the senior onioer present, 
within whose jurisdiction the court sits, shall, if the accused so requests, detail a 
suitable officer to act as his counsel. If there be no such officer available, the fact shall 
be reported to the convening authority for action. An olficer so detailed shall perform 
such duties as usually devolve upon counsel for defendant before civil courts in crim- 
inal cases. As such counsel he should guard the interests of the accused by all honor- 
able means known to the law, so far as they are not inconsistent with rhilitarv rela- 
tions. Enlisted men to be tried shall be particularly advised of their rights 'in the 
premises, and counsel detailed for them, if practicable, unless thev cxpncitlv state 
that they do not desire such assistance. C. M. O. 75, WJ8; /S, 1905, 1; 55, 19 io, S. 



118 COUNSEL. 

5. Accused bound by attitude of counsel during trial— Where the judge advocate 

challenges a member and counsel for accused objects, the accused is estopped to 
complain of the court's ruling which did not sustain the challenge. C. M. O. 128, 
1905, 4. See also Challenges, 9. 

6. Accused entitled to — The accused is entitled to counsel as a right, and the court can 

not properlv deny him the assistance of a professional or other adviser. C. M. O. 
78,1905; 6,1909,3. 
v. Accused without counsel— Judge advocate's duty. See Judge Advocate, 28-44. 

8. Additional civilian counsel for prosecution— A general court-martial can not as- 

sign additional counsel for the prosecution so as to permit such additional counsel 
to have any official standing before the court. File 26504-140, J. A. G. May 6, 1912. 

A civilian lawyer appointed "as counsel to the judge advocate." File 26251- 
10398:6, Sec. Navy Apr. 26, 1915. 

The Secretary of the Navy requested the Department of Justice to furnish legal as- 
sistance to a judge advocate in the general court-martial trial of an enlisted man on 
the charge of "Manslaughter." The request was granted and a United States district 
attornev was directed to assist the judge advocate. G. C. M. Rec. 16098, Exhibit 
"B"; File 6674-30; File of Dept. Justice, E. T. S. 99S58, March 28, 1907. 

9. Appeals by counsel of the accused. See Appeals, 4, 12, 13. % 

10. Argument, closing— General courts-martial. See Arguments. 

11. Boards of investigation. See Boards of Investigation, 4. 

12. Briefs — Submitted to department by counsel for accused. See Briefs, 1, 2, 3. 

13. Sanie— Oral argument as to admissibility of evidence and upon interlocutory pro- 

ceedings. See Arguments, 4; Briefs, I. 

14. Choice of— Accused in a naval court-martial case in which counsel is appointed for 

him by the GoA*ernment has no choice in the matter and his wishes even are not to be 
consulted as to the individual who shall be designated to defend him. File 26251- 
6020:11, July 7, 1913. 

15. Civilian counsel— Praises the witnesses of a general court -martial — "'I also desire to 

express, as an outsider and a civilian, my admiration for the appearanr-e and conduct 
of the naval officers who have appeared here as witnesses. It was quite a revelation 
to me to see the evident spirit of fairness and the desire to stick closely to the absolute 
truth. That is something we do not see so uniformly in civil courts. Often a witness 
becomes an intense partisan for the side which calls him; but the attitude and condat t 
of + he young officers particularlv left an impression upon me that I shall never forget." 
File 26251-9280; G. C. M. Rec. 29422, p. 505. 

16. Same— Accused represented by. C. M. 0. 128, 1905; 20, 1915, 6; 35, 1915, ,6. 

17. Compensation— Naval officers prohibited from receiving compensation— A retired 

naval officer is an officer in the employ of the Government within the meaning of the 
act of March 4, 1909 (35 Stat., 11C9), and can not legally accept any compensation what- 
ever, directly or indirectlv,for any services rendered or to be rendered to any person as 
counsel before courts-martial of the United States. (29 Op. Atty. Gen. 397.) File 
27231-60, Sec. Navy, Feb. 26, 1915; C. M. O. 10, 1915, 13. See also G. C. M. Rec. 30485, 
exhibit 6, 21; File 27231-CO. 

18. Complemented— Bv the department. C. M. O. 86, 1898, 1. 

19. Constitutional rights— Of accused to be represented by counsel— Though the 

reference in Article VI of the Amendments to the Constitution of the United States, 
that "in all criminal prosecutions" the accused shall ''have the assistance of counsel 
for his defense" is to prosecutions before criminal courts of the United States, naval 
courts-martial, though not bound by the letter, are within the spirit of the provision. 
C. M. O. 49, 1910, 14; 55, 1910, 8. See also Constitutional Rights of Accused, 1. 

20. Continuance requested— When an enlisted man, while a prisoner at large awaiting 

trial by summary court-martial, was afforded ample time in which to secure civilian 
counsel, but at his trial requested a postponement, for such time as he would be per- 
mitted, to go in person to some city in the State for the purpose of engaging counsel, 
the court properly decided that this request was unreasonable. This action of the 
court did not deny the accused the right to be represented by civilian counsel, but 
decided in effect that, as he had had ampie time and opportunity to secure counsel 
and had failed to do so, his demand that he be set at liberty for this purpose was 
unreasonable. The accused refused to allow any naval officer on duty at place of 
trial to act as his counsel, whereupon the court properly decided that the accused 
"had denied himself the benefit of counsel," and proceeded with the trial. File 
26287-15:37. Sec. Navy, Apr. 7, 1913; S. C. M. Rec. 5131, 1913. 



COUNSEL. 119 

21. Court — Duty of to provide counsel for accused. See Counsel, 4. 

22. Same — Where accused stated that they had been unable to obtain counsel, and it did 

not appear from the record that they did not desire counsel, it was held by the depart- 
ment that it was the duty of the court to make some effort to provide counsel. C. M. O. 
78, 1905. 

23. Court of inquiry — Requests assistance of district attorney — Procedure to secure. 

File 9608-44:3, Sec. Navy, Mar. 21, 1914. 

Department requested the department of Justice to furnish legal assistance to the 
judge advocate of a court of inquiry which was convened to investigate a case of 
homicide which might possibly be tried subsequently in a Federal court. File 26250- 
842:3, Sec. Navy, Sept. 26, 1916. 

Until a party clearly becomes a defendant he is not entitled to counsel. In one 
case the court informed a party who requested permission to be represented by coun- 
sel: "You are advised that the court does not at this time regard you as a party in the 
case now before it, and therefore is unable to comply with your request." Ct. Inq. 
Rec. 4952, p. 292. 

24. Criminating questions —Counsel for accused not permitted to object to questions 

being asked accused, who is testifying at own request, on ground that the answers 
would criminate. See Self Incrimination, 16. 

25. Same— Counsel for accused not permitted to object to a witness answering a question 

the answer to which might criminate the witness. See Self-Incrimination, 16. 

26. Criticized by the department— A naval officer in his capacity of counsel for accused, 

having misstated facts in his closing argument, was criticized for so doing bv the 
department. C. M. O. 9, 1908, 3; G. C. M. Rec. 21478. 

27. Detailed by senior officer present— Counsel in a summary court-martial case was 

detailed by senior officer present at request of accused. File 26287-3475, Sec. Navy, 
July 5, 1916. 

28. Division officer— It is considered advisable, when practicable, that the accused be 

represented bv counsel, preferably his division officer or some other officer who 
consents to act. C. M. O. 6, 1909, 3. 

29. Duties and powers of— An officer acting as counsel for accused should not institute 

habeas corpus proceedings or a suit for damages against members. File 8464-03. 
See also Counsel, 36; Habeas Corpus, 17. 

30. Exception or protest— Improper to enter on record. See Exceptions, 2, 3. 

31. Failure to provide — Where an accused goes on record as being desirous of having 

counsel, and is denied that right, except where it is impracticable to obtain counsel, 
such denial constitutes a fatal irregularity, and the improper procedure of designat- 
ing the judge advocate to act in that capacity does not offset this irregularity nor 
fulfill the requirements. C. M. O. 49, 1910, 14. 

32. Same— Where accused desired counsel but later stated in open court that he would 

proceed without counsel and that he was ready for triai, the department held that 
this did not constitute a denial of the right to have counsel. C. M. O. 55, 1910, 7. See 
alsoC. M. O. 53, 1901 1-2. 

33. Foreign country— While as the law stands at the present time it is doubtless within 

the province of the Attorney General only to employ counsel in foreign countries to 
defend the United States against suit for collision by a naval vessel, the Attorney 
General has neither facilities for communicating with the naval officers abroad nor 
has he any method of ascertaining who would be the most desirable attorneys to 
employ or by what particular method such employment should bo made. The 
Attorney General, therefore, requested that the Secretary of the Navy act in his 
stead in arranging for the employment of counsel to defend a suit brought in the 
Supreme Court of Hongkong bv owners of a Chinese junk, Tung on Tai, against the 
master of the U. S. N. A. Alexander. File 4729-1, Apr. 24, 1906. See also Colli- 
sion, 1. 

34. Same— Counsel employed in foreign country to defend master of a United States 

auxiliary in suit for collision not required to take oath of office. File 4729-18. 

35. Same— A naval officer was detailed by commander in chief of Asiatic Fleet as counsel 

for an enlisted man in proceedings before United States court for the consular district 
of Hankow upon charge of manslaughter. See File 12671-35. 

36. Habeas corpus— Officer acting as counsel for accused should not institute habeas 

corpus proceedings or a suit for damages against members. See Counsel, 29: 
Habeas Corpus, 17. 



120 • COUNSEL. 

37. Incompetent— When it is contended by civilian counsel employed by the accused 

after completion of the trial that the accused was not properly represented by coun- 
sel, the commissioned officer appointed to defend him being incompetent, and at the 
same time it is asserted that the accused should have been acquitted upon the evidence 
before the court, the contention is considered * - as being whollv without merit." 
File 26251-tf)20:ll, July 7, 1913. 

38. Judge advocate— As counsel for accused. See Judge Advocate, 28-44. 

Counsel for judge advocate. Sec Counsel, 39; Judge Advocate, 45-48. 

39. Law clerk— The law clerk in the Office of Judge Advocate General was assigned by 

the Secretary of the Navy as counsel to the judge advocate in the trial of a commis- 
sioned officer by general court-martial. File 20251-10398:6, Sec. Navy. Apr. 26, 1915; 
G. C. M. Rec. 30485, exhibit 4. 

40. Negligence of— Effect of. File 26251-6020:11, Sec. Navy, July 7, 1913. 

41. Oath— Special counsel. See Counsel, 34, 50. 

42. Officers— Compensation for acting as counsel prohibited. See Counsel, 17. 

Detailed to defend an enlisted man in a civil court. See Counsel, 35. 
As counsel for the United States in the Supreme Court. See Counsel, 52. 

43. Privilege. See Privilege. 

44. Procedure — Of securing counsel for accused. See Counsel, 4. 

45. Prosecuting witness— A general court-martial can not assign additional counsel for 

the prosecution (emploved and paid by prosecuting witness) so as to permit such 

additional counsel to have any official standing before the court. File 26504-140, 
J. A. G., May 6, 1912. 

46. Protests or exceptions — Not permitted on record. See Bills of Exceptions, 1; 

Counsel, 30; Exceptions, 2,3; Protests, 1. 

47. Record of proceedings— It should be shown on record whether or not the accused 

desired counsel and, if so, that the request was granted and counsel entered. C M. O. 
12 1911, 3. 
Record of proceedings should note absence of counsel. See Counsel, 2. 

48. Retired officers— Acting as counsel for accused. See Counsel, 17. 

49. Solicitor — The solicitor in the Office of the Judge Advocate General was assigned by 

the Secretary of the Navy as associate and assistant to a judge advocate of a court 
of inquiry. Ct. Inq. Rec. 4952. 

He has" also represented the United States in the Supreme Court. (U. S. v. Smith, 
197 U. S. 3:6: File 469-1904. 

50. Special— Special counsel employed in foreign countries to defend the master of a United 

States auxiliary in a suit for collision net required to take the oath of office required 
by R. S. 366. (See act Aug. 24, 1912, 37 Stat. 4€o; 18 Op. Atty. Gen. 135.) File 
4729-1S. 

51. Statements of counsel— Court should not give weight to statements of counsel for 

the accused by accepting them as evidence. C. M. 6. 5, 1913, 10. 

52. Supreme Court— A commissioned officer of the Marine Corps appeared in behalf of 

the United States "by special leave of the court." (Johnson v. Sayre, 158 U. S. 113.) 
See File 5728-1894. See also U. S. v. Freeman (3 How. 560), in which the defendant, 
an officer of the Marine Corps, submitted printed argument for himself and was not 
represented by counsel. 

Solicitor lias also represented the United States in the Supreme Court. See Coun- 
sel, 49. 

53. Unreasonable request— Of accused for civilian counsel. See Counsel, 20. 

54. Witness— If counsel is a v:'tness he is not to be warned or shown as withdrawing. 

C. M. O. 15, 1910,5. 

55. Same— Counsel is not permitted to object to a witness answering a question which 

miijht criminate the witness. See Self Incrimination, 16. 

56. Same— Counsel should not improperly assist witness on stand. C. M. O. 49, 1915, 

10, 11. 

COUNSEL FEES. 

1. Collision— Between Chicago and Azov. See File 4290-99; 2068-99. See also 21 Op. 

Atty. Gen. 195; Collision--. 2. 

2. Same— Saturn and Newchwang. File 4573-02. 

3. Officers— Acting as counsel for accused in naval court-martial cases. See Counsel, 17. 



COURT. 121 

COUNTERSIGN. 

I. Officer should respect— An officer should not display ignorance of the duties of a 

sentinel, should respect the sacred character of a countersign, and should treat inferiors 
charged with responsible duties, such as sentinels, with respect. Where an officer 
did not so act he was tried by general court-martial. C. M. O. 95, 1893, 2-3. See also 
Orders, 34; Sentinels, 18. 

COURT. 

1. Absence of members. See Members of Courts-Martial, 1-6. 

2. Accused— Courts-martial in the conduction of trials should guard against anything 

which might indicate that the accused was not fully protected in his rights, and thus 
prevent any question from arising as to the fairness of his trial. File 26251-102S7, Sec. 
Navy, Feb. 20, 1915. 

3. Same— Should be present during trial. See Accused, 1-9. 

4. Adjournment. See Adjournment of Courts-Martial. 

5. Authentication— Of record of proceedings. See Record of Proceedings, 10-16. 

6. Same — Omission of signature of one of members. See Members of Courts-Mar- 

tial, 12, 24. See also Authentication of Sentences. 

7. Boatswains— May not act as deck court officers. See Deck Courts, 62. 

8. Same — May convene deck courts if actually in command of a naval vessel. See Deck 

Courts 4. 

9. Same — Ir commanding a naval vessel a boatswain may convene a summary court- 

martial. See Boatswains, 10; Summary Courts-Martial, 21. 
10. Carelessness, gross— Of court and judge advocate. C. M. O. 78, 1905, 1; 14, 1913, 5. 

II. Censured by department. See Criticism of Courts-Martial, 6, 16, 35, 36. 

12. Challenges. See Challenges. 

13. Changes— In court. See Convening Authority, 32; Court, 35, 37-48. 

14. Charges and specifications— Court errs if it pronounces faulty charges and specifi- 

cations in "due form and technically correct." C. M. O. 35, 1915, 6-7. See also 
Court, 73. 

15. Same— Errors in. See Charges and Specifications, 33, 34. 

16. " Cleared court"— Purpose must be shown in record. C. M. O. 28, 1910, 6. See also 

Court, 20. 

17. Clemency— The power of exercising clemency is vested in the reviewing authority, 

not in the court-martial or the members. C. M. O. 67, 1902; 1, 1914, 8. See also 
Adequate Sentences, 4-19; Clemency, 13. 

18. Same — Revising authority will not exercise clemency when court adjudges an inade- 

quate sentence. Sec Adequate Sentences; Clemency, 13. 

19. Same — Recommendations to clemency should be made by members, not court. See 

Clemency, 35. 

20. " Closed court" — An incident of sufficient importance to be mentioned in the record 

should be recorded therein with such clearness as to render its intelligent review prac- 
ticable. Therefore, where the court is cleared ' ' for the examination of a question sug- 
gested by a member," and subsequently "that the question' suggested was with- 
drawn, " the question suggested should be included in the record so that the reviewing 
authority may form an intelligent judgment as to the propriety of this action. C. M. 
O. 10, 1897, 3-4. See also Court, 16; Reviewing Authority, 17. 

21. Same— Record should show purpose for which cleared. See Court, 16, 20. 

22. Same— The accused submitted a plea in bar of trial. "The court sustained this plea 

and dismissed the said specification. They did this upon evidence produced in 
secret session, and when the court was cleared for deliberation, and in the absence 
of the accused. That evidence should have been produced only in open court by 
the accused, as part of his case, and in support of his plea. Thus, while the con- 
clusion arrived at upon the proof was correct, and is approved by the Secretary of 
the Navy, the mode of introducing that proof was wholly irregular, and is disap- 
proved." G. O. 152, Mar. 29 1870. 

23. Same— Judge advocate should not be present. See Accused, 3; Judge Advocate, 

105. 

24. Same— Closing court after arriving at a finding. C. M. O. 26, 1910, S. 

25. Same— When court opens it should announce its decision. C. M. O. 49, 1915, 10. 

26. "Closed doors." See Court, 16, 20-25. 

27. Commanding officer— Of a naval vessel in imposing punishments is not a court- 

martial. See Commanding Officers, 14,31; Jeopardy, Former, 3. 

28. Same— Can not convene a general court-martial. See COMMANDING OFFICERS, 22. 

29. Same — Can convene only summary courts-martial and dock courts for trial of enlisted 

men under their command. See Commanding Officers, 42. 



122 COURT. 

30. Common law— Subtle technicalities of. See Common Law, 12. 

31. Composition— Of naval courts-martial. See Court, 33-51. 

32. Conjectures — The court, whose rinding is controlled by oath and rendered with all 

the solemnity incident thereupon, is not required to indulge in conjectures for the pur- 
pose of supplying omissions in the testimony which it was the duty of the accused 
to offer if he desired and was able to do so (C. M. O. 39, 1913, 13); but on the contrary 
the court's duty is to render its findings upon the evidence before it. C. M. O. 24, 
1914,6. See also Court, 95; Embezzlement, 25 (lines 35-3,). 

33. Constitution of— General court-martial— A general court-martial shall consist of 

not more than 13 nor less than 5 commissioned officers as members; and as 
many officers, not exceeding 13, as can be convened without injury to the serv- 
ice, shall be summoned on every such court. But in no case, where it can be 
avoided without injury to the service, shall more than one-half, exclusive of the 
president, be junior to the officer to be tried. The senior officer shall always preside, 
and the others shall take place according to their rank. (A. G. N. 39.) C M. 0. 
68, 1898, 3; 125, 1900, 1; 7, 1914, 10. 
34 Same — In detailing officers for a general court-martial for the trial of a medical, pay, 
or marine officer it is deemed proper, if the exigencies of the service permit, that at 
least one-third of the court be composed of officers of the same corps as the person 
to be tried. No officer should be named in the precept as a member against whom 
either the judge advocate or the accused can reasonably object when called upon to 
exercise the privilege of challenge. C. M. O. 1, 1914, 7. See also EviDENeE, 12 (p. 
219). 

35. Same — There should be no change in the constitution of a general court-martial, as 

stated in the precept, without authority therefor appearing on the record. CM. O. 
1, 1912, 5. 

See G. C. M. Rec. 32043, where court refused to permit an officer to sit as a member 
because he did not have "specific orders." 

36. Same — Convening authority should not detail himself as a member— It is decidedly 

improper though not illegal for a convening authority to detail himself as a member 
of a summary court-martial and then subsequently to act upon the case in the capacity 
as convening authority. Case was disapproved where this was done. File 26287-3S9; 
26287-963. But see File 262S7-1185, where department did not disapprove. 

37. Same— Proceedings, findings, and sentence disapproved on account of the irregular 

manner in which one of the members of a general court-martial was appointed. The 
fatal irregularity consisted of an officer, whose presence was necessary to make a legal 
• quorum, sitting as a member on orders from the Bureau of Navigation and without 
authority of the convening authority. C. M. O. 68, 1898. 

Where an officer who sat as president of the general court-martial was informed of 
the appointment thereof and of the date and place of its convening, but was not 
specifically designated in the precept as a member; he was not empowered to sit, and 
his participation in the proceedings invalidated them. File 10200-C3; 1007-04. 

38. Same— Where an officer sat as a member of a general court-martial and signed the 

record despite the fact that no order appointing him as such had been issued by the 
convening authority, although he had orders signed by the Chief of the Bureau of 
Navigation, the department disapproved the case, stating that the court was ille- 
gally constituted, and the conviction of the accused was illegal. C. M. O. 49, 1910, 6. 

39. Same— In a case where a member sat as a member of a general court-martial although 

no orders had been issued by the convening authority (the department), the depart- 
ment disapproved the proceedings, findings, and sentence, since the tribunal that 
tried the accused was not a lawfully constituted court-martial. C. M. O. 21, 1905 3 
See also CM. 0.114,1901; G. C M. Rec. 32043. 
40. Same— Two officers received orders from the Bureau of Navigation to report to a 
president of a general court-martial as members. They sat as members without any 
authority from the convening authority and signed the sentence, etc. The presence 
of these officers was not necessary to form a legal quorum. The department held that 
the general court-martial was illegally constituted. The statutory authority, that 
general courts-martial may be convened by certain persons, can not be extended 
beyond its terms, and the court-martial in this case not having been constituted in 
accordance with statutory requirements, the entire proceedings must, therefore be 
regarded as illegal. Accordingly the proceedings, findings, and sentence were 'dis- 
approved. This action was taken solely upon the ground of the irregular and illegal 
constitution of the court, and with regret that the accused should go unpunished for 
the oflense of which lie had pleaded guilty. C M. O. 34, 1901. See also C. M O 68 
1898; 125, liHX), 1-2. 



COURT. 123 

41. Same— A general court-martial consisted originally of seven members. One officer 

was detached from his station and duty by the convening authority (Secretary of the 
Navy) and another by order of the Brigadier General, Commandant of the United 
States Marine Corps. Neither* officer was expressly relieved by the convening author- 
ity from service as a member of the general court-martial. The court-martial then 
proceeded to the trial of an enlisted man with five members present. The department 
approved the case since the general court-martial was not reduced below the minimum 
number prescribed by law and in order that the accused might not go entirely unpun- 
ished for the offense to which he pleaded guilty. C. M. 0. 125, 1900, 1-2. 

42. Same—Upon the question of the constitution of a court-martial, under article 39 of the 

Articles for the Government of the Navy, the convening authority is charged with 
discretion. (Mullan v. U. S., 140 U. S. 245.) C. M. O. 125, 1900, 2. 

43. Same— The record must show on its face that the court-martial is properly constituted. 

File 26251-5344. See also Charges and Specifications, 91. 

44. Same— In a case where an officer sat as a member of a general court-martial, although 

no orders had been issued by the convening authority, the department disapproved, 
since the tribunal which tried the accused was illegally constituted. C. M. O. 21, 
1905, 3. # 

45. Same— The convening authority alone is empowered to make changes in the constitu- 

tion of a general court-martial. C. M. O. 68, 1898; 155, 1897, 1; 125, 1900, 1-2; 34, 1901; 
49, 1910, 6. See also Convening Authority, 32. 

Orders of the Bureau of Navigation or Major General Commandant of the Marine 
Corps can not relieve an officer as member or judge advocate of a general court-martial. 
See C. M. O. 125, 1900; 34, 1901. 

46. Same— An order detaching an officer from duty at any particular station does not per 

se relieve him from service as a member of a general court-martial, although such an 
order, duly issued by the authority which convened the court-martial, may be assumed 
as intended to relieve the officer concerned from duty as a member of such court- 
martial. C. M. O. 125, 1900, 1. 

47. Same— Where a judge advocate acted as such in a trial without being properly ordered 

to such duty by the convening authority, the department disapproved the proceedings, 
findings, and sentence. C. M. 0. 155, 1897, 1-2. 

48. Same— A precept designated two officers as members, while in the list of members 

present upon the convening of the court the names of these two officers did not appear, 
and no mention is made of their absence during the entire proceedings of the court, 
but after the court had adjourned, a note appeared upon the record signed by the 
judge advocate, accounting for their absence. For this and other irregularities the 
department disapproved. C. M. O. 155, 1897, 1-2. 

49. Same— Specific orders are necessary for ordering a retired officer to court-martial dutv. 

C. M. O. 23, 1910, 5. See also Retired Officers, 23. 

50. Same — Summary court-martial. See Summary Courts-Martial, 15. 

51. Same— Deck court. See Deck Courts, 10-12. 

52. Contempt of court. See Contempt of Court. 

53. Continuance. See Army, 13; Constitutional Rights of Accused, 17; Continu- 

ances, Counsel, 20; Court, 134. 

54. Convening authority. 'See Convening Authority. 

55. Convening of. See Convening Authority, 27-32; Deck Courts; Summary 

Courts-Martial. 

56. Same— On foreign territory. See Jurisdiction, 53. 

57. Same — Courts-martial, other than naval courts-martial, can not be convened on vessels 

of the regular Navy. See Army, 7; Naval Militia, 35, 38, 39. 

58. Counsel for accused— Duty of court. See Counsel, 4, 19. 20, 31, 32. 

59. Court-martial orders— Should be consulted in adjudging sentences— Members 

should have file of— Officers strictly accountable for ignorance of instructions con- 
tained in— Court-martial orders have full force and effect as regulations. See Cotjb r- 
Martial Orders, 8, 15, 17, 18, 33, 35, 36, 37, 39, 40, 41, 42. 

60. Crimination. See Self-In crimination. 

61. Criticism of court. See Criticism of Courts-Martlvl. 

62. Death of member— Before signing record. See Members of Courts-Martlal, 24. 

63. Deck courts. See Deck Courts. 

64. Degree of criminality involved— Court should call for evidence after plea of guilty , i f 

necessary, to show the degree of criminality involved. See Degree of Criminality 
Involved, 1. 

65. Delegation of power— The court attempts to delegate its powers and duties when it 

allows an expert witness to express his opinion as to the guilt or innoconco of the 
accused. C. M. O. 24, 1914, 22. See also C. M. O. 49, 1915, 15; Opinion, 15-17. 



124 COURT. 

66. Depositions — Necessity of approval by court and convening authority. See Depo- 

sitions, 3. 

67. Dereliction of. See C. M. O. 25, 1915, 2. S'ealso Court, 93. 

68. Dissolved — After a general court-martial has been dissolved further proceedings by it 

in revision, pursuant to order of convening authority, are wholly void and without 
legal effect. Sentence imposed prior to dissolution may be approved. C. M. O. 4, 
1914, 1, 4. See also C. M. O. 214, 1901, 1; Court, 71. 

69. Same — Where the court has been dissolved, or by reason of any casualty or exigency of 

the sen-ice can not practically be reconvened, there can, of course, be no correction of 
its proceedings. C. M. O. 7, 1911, 14. 

70. Same — Where a court had been dissolved it was impossible to return the record for 

revision. C. M. 0. 22, 1913, 6. 

71. Same — Where a record was returned to the convening authority by the re vie win-: 

authority, directing that the court be reconvened for the purposes of reconsidering the 
finding and sentence, the court having been dissolved by the convening authority 
before the receipt of the record from the reviewing authority, it was held by the depart- 
ment that the court having been legally dissolved, it could not legally meet to recon- 
sider its proceedings, since it ceased to exist as a legal body when dissolved and an 
order subsequentlv issued, revoking the order dissolving the court will be futile and 
ineffective. C. M. O. 7, 1911, 14. See also Court, 68. 

72. Documents — Court should not permit documents or certified copies of same to be 

appended to record unless they have been offered in evidence. See Evidence, 
Documentary, 45. 

73. " Due form and technically correct"— Means that the charge and specification are in 

the form required, and the facts alleged in the specifications constitute the offenses 
set forth in the charges. That the specification supports the charge. CM. O. 43, 
1906, 2. See also Court. 14; File 26251-12159, p. 17. 

74. Evidence— May be introduced out of usual order for satisfactory cause at discretion of 

court. See Evidence, 89-90. 

75. Same— Court should not "originate" evidence. C. M. O. 216, 1901, 2; 19, 1915, 3. 

76. Same; — Court should call for better evidence if it is available. C. M. O. 37, 1909, 4. 

77. Same — Misinterpretation by court. C. M. O. 37, 1915, 10. 

78. Same — By receiving incompetent evidence the court permits a miscarriage of justice 

and the accused to escape punishment. C. M. O. 37, 1909, 6. Sec also Evidence, 75. 

79. Same — Courts-martial in their proceedings should be governed by the rules of evidence 

as laid down in the United States courts. See Evidence, 106-109. 

80. Evidence in extenuation — Procedure when evidence in extenuation is inconsistent 

with plea of "guilty." C. M. O. 30, 1910, 4. See also Evidence, 51. 

81. Exception or protest — Neither the judge advocate, the accused, nor any member of 

the court, has any right to enter an exception or protest on the record. See Excep- 
tions, 2. 3. 

82. Executive branch of the Government — A naval court-martial is a branch of the 

executive, not of the juoicibi, department of the Government. See Court, 113. 

83. Facts— Court as judge of. See Court, 103. 

84. Facts in dispute. See Criticism of Coukts-Majrtial, 14. 

85. Facts not in dispute. See Criticism of Courts-Martial, 14. 

86. Finding — Court should not eliminate essential gravamen from specification in its 

finding and then find guilty of charge. C. M. O. 41, 1903, 2; 29, 1909, 2; 17,1910, 4; 
4, 1913, 54. See also C. M. O. 146, 1900, 2; 12, 1904, 3. 

87. Same— Incorrect, finding due to ignorance of law. C. M. O. 4, 1913, 13. 

88. Same-Court should not eliminate words in specification so as to make specification 

incomplete. C. M. O. 12, 1904, 3; 29, 1909, 2. 

In one case the department stated that "such a conclusion or rinding of a court is 

beyond understanding and unreasonable." C. M. O. 49, 1910, 13. 

c 9. Foreign country— Courts-martial convened in foreign countries. See Jurisdiction, 53. 

90. Forms of Procedure— Naval courts-martial are required to conform to the approved 

Forms of Procedure. C. M. 0. 10, 1897, 3; 4 ? 1913, 56; 26, 1910, 3; 28, 1913, 7; 51, 1914, 1. 

In one case the department called attention to the court's failure to follow strictly 

the Forms of Procedure, and cited the order of the Secretary of the Navy on page 3 

of the Forms of Procedure, 1910. C. M. O. 17, 1910, 10. 

The department stated, "It is further to be noted that the remarks made by the 
court in revision, apparently intended to justify the inadequate sentence origihally 
imposed, were highly irregular and unauthorized by the approved Forms of Pro- 
cedure to which naval courts-martial are required to conform." C. M. O. 28, 1913, 7 



COURT. 125 

Naval courts-martial should carefully follow the procedure as established in Navy 
Regulations, Forms of Procedure, and Court-Martial Orders, by which they are 
governed, never at any time losing sight of the fact, as expressly stated in the depart- 
ment's order promulgating the Forms of Procedure. 1910, that "deviation therefrom 
may be fatally irregular and erroneous." (Forms of Procedure, 1910, p. 3.) C. M. O. 
51, 1914, 1. See also C. M. O. 49, 1915, 9. 

Full force and effect as regulations. C. M. O. 12, 1911. 

91. General courts-martial— Who may convene. See Convening Authority, 27-32. 

92. Same— Constitution or composition of. See Court, 33-35,37-49. 

93. "Guilty in a less degree tiian charged," plea of— Court should reject and try 

accused for offense as charged. See Guilty in a Less Degree Than Charged, 9-11. 
The court and the judge advocate are guilty of a dereliction of their duties when 
the latter recommends and the former accepts a plea of guilty in a less degree than 
charged when witnesses are available to prove the offense as charged. C. M. O. 10, 
1912, 8. 

94. Holiday— Court may not adjourn over holiday without permission of convening au- 

thority. See Adjournments of Courts-Martial, 1, 2, 3. 

95. Hypotheses— Court not required to indulge in hypotheses to supply evidence which 

it was duty of accused to supply. C. M. O. 39, 1913, 13. See also Court, 32. 

96. Illegally constituted. See Court, 37, 38, 39, 40, 41, 44; Deck Courts, 19, 26. 

97. Joinder, trials in. See Joinder, Trials in. 

98. Judge advocate— Not to usurp functions of court. See Judge Advocate, 123-126. 

99. Same— Court should not usurp functions of judge advocate. C. M. O. 81, 1897, 2. 

See also G. C. M. Rec. 29764; Judge Advocate, 61. 

100. Same— Censure— Court should not. See Judge Advocate, 60. 

101. Same— Court, adviser to. See Judge Advocate, 49-59. 

102. Same— "Closed court"— Should not be present. See Judge Advocate, 105. 

103. Judge of fact— The court, in its capacity of jury, is the sole judge of fact. G. C. M. 

Rec. 24745; File 26251-9649. 

104. Jurisdiction— A naval court-martial is a court of limited jurisdiction. C. M. O. 49, 

1910, 9; 14, 1910, 8; 15, 1910, 9, 49-59. See also Court, 82, 112; Evidence, 21; Juris- 
diction 29, 73. 

Jurisdiction over retired officers. See Jurisdiction, 114; Retired Officers, 3-5, 
22, 33, 60, 61, 71, 74. 

Over resigned officers. See Jurisdiction, 113. 

Jurisdiction of naval courts-martial in general. See Jurisdiction, 18, 26-39. 

105. Same— Convened in foreign countries. See Jurisdiction, 53. 

106. Juror— Capacity of members as jurors. C. M. O. 94, 1905, 1. See also 6 Op. Atty. 

Gen., 200, 206; Jurors, 1. 

107. Jury— The court in its capacity of jury has the power of determining the weight to 

be given to the testimony of the accused and consider it in coming to its findings. 
File 26251-9649. 

108. Law— Misapplication of, by court. C. M. O. 37, 1915, 10. 

109. Same— Court-martial should not "make law." See Court, 113. 

110. Same— Duty to enforce law. C. M. O. 4, 1913, 6. 

111. Leniency of court (C. M. 0. 14, 1915, 1)— " Unwarranted leniency." (File 26262-2610, 

Sec. Navy, July 21, 1916). See Criticism of Courts-Martial, 32. 

112. Limited jurisdiction— A naval court-martial is a court of limited jurisdiction. Sec 

Court, 104. 

113. Making law— It is not for a naval court-martial, which is a branch of the executive, 

and not of the judicial, department of the Government, to make law or attempt to 
blaze the way in the direction of reforms, if they be "reforms," which have been 
specifically rejected by the Federal courts. C. M. O. 24, 1914, 19. See also C M. O. 
1, 1914,8; 14,1914,5; Criticism of Courts-Martial, 20. 

114. "Marine summary court-martial"— There is no tribunal known to the law as a 

"marine court-martial." Letter, Sec. Navy, July 5, 1877. 

115. Members. See Members of Courts-Martial. 

116. Motion to strike out evidence— Court should rule on. C. M. O. 49, 1915, 12. 

117. Nature of— The essence of all military proceedings is summary and vigorous action, 

since the certainty of prompt punishment is more conducive to discipline than pun- 
ishment deferred long after the offense. Naval courts-martial are no part of the 
judiciary of the United States, are not even courts in the full sense of the term, but 
are, in peace as well as in war, simply bodies of officers of the naval service ordered 
to investigate accusations, arrive at facts, and where just recommend a punishment. 
In the absence, therefore, of statutory direction they can scarcely be held bound by 



126 COURT. 

the same strict adherence to common-law rules as are the true courts of the United 
States; and, upon trials, they may properly be allowed to pursue a more liberal 
course in regard to the admission of testimony and the examination of witnesses than 
do habitually the civil tribunals. Their purpose is to do justice, and if the effect of a 
technical rule is found to be to exclude material facts or otherwise obstruct a full 
investigation the rule may and should be departed from. (See Wenthrop, 473.) 13 
J. A. G., 59-60; File 6465-03, J. A. G v July 22, 1903, p. 10. See also Court, 127. 

118. Oath— General court-martial— Disclosing vote, opinion and sentence. See Criticism 

of Courts-Martial, 22, 35; Oaths, 20, 47. 

Summary court-martial— Disclosing vote, opinion and sentence. See Oaths, 47. 

119. Same — Taken by members of general courts-martial. See Oaths, 20. 

120. Same — Until a court is duly sworn according to law it is incompetent to perform 

any judicial act, except to hear and determine challenges against its members. C. 
M. O. 29, 1914. 3. 

121. Objection— Where a member is a witness and an objection to a question is made he 

should only resume his status as a member to act on the objection when it is necessary 
to constitute a quorum of five. C. M. O. 49, 1915, 12, 15. See also Members of 
Courts-Martial, 52. 

122. Obstinate. C. M. . 36, 1905, 3; 14, 1914, 5. See also Criticism of Courts-Martial, 16, 

35, 48. 

123. Obtundity. See Criticism of Courts-Martial, 44, 48. 

124. "One-man court"— A commanding officer is not a "one-man court." CM. O. 7, 

1914, 10, 12. See also Court, 27; Commanding Officers, 14. 

125. "One-officer court"— A deck court is a "one-officer court. " C. M. O. 7, 1914, 11. 

126. "Open court" — The sessions of a general court-martial shall be public, and in general 

all persons except such as may be required to give evidence shall be admitted. How- 
ever, in cases where it may seem desirable that certain classes of spectators, such as 
women, children, and others, should be excluded during the trial, the court, when 
convened by the Secretary of the Navy, or the convening authority in other cases, 
should communicate with the Secretary of the Navy requesting permission therefor 
and giving a full statement of the reasons. (See , in this connection, Navy Regula- 
tions, 1913, R-761; G. C. M. Rec. No. 21478a; File 26504-115, J. A. G.. Jan. 21, 1911) 
C. M. O. 51, 1914, 3. See also File 26504-115, J. A. G., Jan. 24, 1911, which holds that 
the sessions of a naval general court-martial should be public. 

127. Same— While a court-martial may technically, within its legal right, close its doors to 

the public during the trial of an accused, such a procedure is contrary to authority of 
textwriters, the spirit of the Constitution, and to the usual 'practice of the Federal 
courts. File 26504-115, J. A. G., Jan. 24, 1911. 

The statutes regulating the course of procedure in military courts show that, in 
contemplation of Congress, these courts stand on the same footing as other judicial 
tribunals of the country. Their sittings , for example . are free to the attcn dance ofth c pub- 
lic, like those of other courts. (11 Op. Atty. Gen. 137, 141.) Again, the Sixth Amend- 
ment to the Constitution provides that the accused shall enjoy a speedy and public 
trial. While it seems evident that this constitutional provision does not refer to trials 
by court-martial, yet it is indicative of the view which Congress took of the matter 
in framing the amendment. "All trials before courts-martial, like those in the civil 
courts of judicature, are conducted publicly and with open doors." (Macomb, 29.) 
"Deliberations of the court takes place always with closed doors. A t'other times it 
is open to the public, military or otherwise, with such restrictions as the convenience 
of the court and the parties and the capacity of the room may dictate. (De Hart, 94.) 
In this connection see also Harwood, 65; Coppee, 50; Army Digest, 1902, par. 1012. 
In civil courts it has been held that where the evidence is of a peculiarly indecent 
and vulgar character the court may exclude all parties from the room who are not 
necessary for conducting the trial. (12 Cyc. 520n.) 

The exclusion of persons in certain cases was held to be contrary to the spirit if not 
to the letter of the Constitution, and in the case of courts-martiarit is certainly con- 
trary to a practice that has extended uniformly so far as precedents have been discov- 
ered, for very manv years. In a Federal case where the subject was considered (United 
States v. Buck, 24 Fed. Cas. No. 14680) the syllabus states as follows: "A court of the 
United States ought never to sit with its doors of entrance closed, so as to prevent 
publicity to its proceedings." In that decision the court recognized that for its own 
protection certain persons as a class, but not as individuals, might be excluded as a 
prudential measure to safeguard the administration of justice," File 26504-115, 
'... .'an. 24, 1911. 

A person who was tn be a witness desired to have his counsel present during a trial 
at which he was later to testify. Counsel for the accused objected, and the court ruled 



COURT. 127 

as follows: "The court decides that the witness can not be present either in person 
or by counsel, nor can he address the court in any way." The counsel for the witness 
thereupon withdrew. The department approved this procedure. G. C. M. Rec. No. 
21478a. 

128. Same— Accused should be present. See Accused, 1-9. 

129. Opinion — Court should not allow witnesses to state directly their opinion upon the 

specific question whether or not upon the evidence the accused is guilty or innocent. 
See Opinion, 15-17. 

130. Orders — As members or judge advocates. See Convening Authority, 32; Court, 

35, 37=49. 

131. Originating evidence. See Court, 75. 

132. Pardon— Court can not pardon offenses or award a nominal punishment equivalent 

to a pardon. C. M. O. 89, 1897, 2; 132, 1897, 2. See also Adequate Sentences, 5; 
Pardons, 9. 

133. Physical condition of accused— It is not within the province of general courts- 

martial to determine the physical condition of an accused and his ability to serve 
sentence. These are not matters for it to consider. The law making it the duty of 
naval courts-martial to adjudge punishment adequate to the nature of the offense 
permits no allowances being made because of a man's physical disability. If an ac- 
cused's physical condition is such as to warrant, in the opinions of the members, the 
exercise of special clemency the members of the court might recommend him to 
clemency or the medical officers at the prison where the accused is ordered confined 
might take suitable action. C. M. O. 49, 1910, 12-13. See also Clemency, 41, 42. 

134. Postponement— Where an accused states he is not ready for trial giving his reasons 

for stating that he wanted to secure the testimony of a certain witness and also desired 
to secure certain documentary evidence, the court should grant a postponement of 
the trial, unless it be shown to have been impracticable to accede to such a request, 
and where it is practicable such noncompliance with Article XI of the amendments to 
the Constitution of the United States would constitute a grave error. C M. O. 17, 
1910, 8-10. See also Constitutional Rights of Accused, 17; Trials, 7. 

135. Precept— Convening authority may grant court permission to adjourn over holidays 

in precept. C. M. O. 51, 1914, 4. See also, Adjournment of Courts-Martial, 1, 2. 
Precept is sufficient authority for officers to sit as members of general courts-martial, 
martial. C. M. O. 28, 1910, 5. See also Precepts, 12,15, 21. 

136. President of a general court-martial— Absent on leave without knowledge or per- 

mission of convening authority. See Members of Courts-Martial, 4. 

137. Previous convictions. See Previous Convictions. 

138. Public trial. See Court, 126, 127; Public Trial. 

139. Question by member— If rejected recorded as "Question by a memoer," and not 

as "Question by court." C M. O. 17, 1910, 7; 19, 1915, 1, 3. See also, Members of 
Courts-Martial, 40; Witnesses, 40. 

140. Quorum— An absence of a legal quorum does not prevent the entering of a nolle 

prosequi by the prosecution. File 26251-8038:7. 

141. Same— Procedure when court is reduced below. File 26504-176; G. C M. Rec. 26948. 

142. Same — Not practicable for court to be reconvened as court was reduced below legal 

minimum. See C. M. O. 5, 1914, 6; 29, 1914, 10; 49, 1915, 12. 

143. Reconvened— Court could not be reconvened as membership was reduced below 

legal minimum. C. M. O. 5, 1914, 6; 29, 1914, 10; 49, 1915, 12. 

144. Same— A revision by a court reconvened after dissolution is of no legal effect. C. M. O. 

4, 1914, 1. See also Court, 68-71. 

145. Same— The judge advocate introduced and the court received evidence of previous 

convictions which was clearly inadmissible. As this evidence may have influenced 
the court in adjudging its sentence the court was reconvened for the purpose of recon- 
sidering the sentence, excluding during such reconsideration the above-mentioned 
evidence of previous convictions. C. M. 0. 17, 1910, 6. 

146. Same— Cases where the court could not oe reconvened because of exigencies of the 

service or because it was impracticable. C. M. O. 49, 1910, 13; 23, 1913, 15; 32, 1913, 2; 
39, 1913, 14; 4, 1914, 1, 4. See also Convening Authority, 51, 52. 

147. Reconvening of itself— A general court-martial in the case of an officer reconvened 

the day after the completion of the trial at the call of the president of the court and 
reconsidered the sentence because of inadequacy. The record had not been sent to 
the convening authority. The court revoked its former sentence and substituted a 
new one. Convening authority (station) approved without comment and the depa it - 
ment permitted the procedure to stand without comment. G. C. M. Rec. 27923. 
See also 1 Op. Atty. Gen. 297; G. C. M. Rec. 9427 (1901). 

50756°— 17 9 



128 COURT. 

148. Same— Accused was tried by general court-martial, found guilty, and sentenced. 

The court then signed the record and proceeded with another case. On the following 
day, however, the court met at the call of the president, and, when cleared on the 
request of a member, reconsidered the case of the accused, revoked its former sentence, 
and in lieu thereof sentenced him to three years' confinement, dishonorable dis- 
charge, etc. (Former sentence was one year's c onfin ement, dishonorable discharge, 
etc.) 

The department's action thereon was expressed as follows: 

"The proceedings in reconsideration in this case, without any apparent reason, 
show lack of proper deliberation on the first sentence. This man has already been 
confined for a month and placed in irons * * *. The sentence is disapproved and ' ' 
the accused restored to duty. C. M. O. 8, 1908, 3-4. 

149. Same — Summary court-martial — The record shows that the trial was finished and 

that the court found the specification "proved," but the record also shows that the 
court decided to reconvene itself to ' ' reform its finding and sentence, the court having 
been informed by the recorder of an error in the name of the accused as stated in the 
specification and also in the evidence." 

Such procedure was irregular and indicated a lack of preparation of the case by the 
recorder and carelessness on the part of the court in not noticing the error referred 
to at the proper time and before reaching its finding and rendering iudgment. Article 
1694, paragraph 2, U. S. Navy Regulations, 1909 [Navy Regulations, 1913, R-620 (2)] 
provides, that after the proceedings and trial have been completed and recorded, they 
shall be signed by the senior member and the recorder, and transmitted to the con- 
vening authority. Paragraph 1 [R-52] of the above article states that the sentence of 
the court shall be signed by all the members and the recorder (see also Naw Regula- 
tions, 1913, R-810). CM. O. 15,1910,12. Seealso File 26287-494; 10 p. Atty! Gen. 297. 

150. Record— Signing of. See Court, 175; Members of Courts-Martial, 12, 24, 48. 

151. Same — Members as well as judge advocate are responsible for errors in record. See 

Criticism of Courts-Martial, 13, 28, 35, 40; Record of Proceedings, 53, 54. 

152. Same— Binding of. See Binding of Court-Martial Records. 

153. Recorder of deck court— Nature of. See Deck Courts, 48, 58. 

154. Recorder of summary court-martial — Not to usurp functions of court. C. M. O. 

42, 1909, 15-16. 

155. Refusing to correct errors. See Criticism of Courts-Martial, 15, 19, 20, 35, 36, 

38, 48. 

156. Relief — From duty as member. See Convening Authority, 32; Court, 45, 46. 

157. Remarks of court — Justifying an inadequate sentence were highly irregular and 

unauthorized. C. M. O. 28* 1913, 7. 

158. Reprimanded for leniency. See Adequate Sentences, 3, 10; Court, 111; Criti- 

cism of Courts-Martial, 55. 

159. Revealing vote. See Criticism of Courts-Martial, 22, 36; Oaths, 47. 

160. Reviewing authorities — Power of reviewing and revising authorities over naval 

courts-martial. See Reviewing Authority, 15; Revision, 24. 

161. Revision. See Revision. 

162. Secrecy of trials. See COURT, 126, 127, 171. 

163. Sentence— Law imposes on courts-martial duty to adjudge adequate sentences in 

cases of convictions. See Adequate Sentences. 

164. Same— Court assumes prerogatives of reviewing authority by adjudging an inade- 

quate sentence. C. M. O. 42, 1909, 8; 15, 1910, 6; 7, 1912, 3; 8, 1912, 3; 16, 1912, 3; 1, 
1913, 7; 9, 1913, 3; 16, 1913, 3; 28, 1913, 6. 

165. Same— " Ill-judged leniency" of the court. C. M. O. 47, 1906. 

166. Same— Illegal to exercise power of mitigation in sentence. C. M. 0. 16. 1912, 3. 

167. Same— Court should not exercise power of pardon in sentence. See Pardons, 9. 

168. Same — Court should not prescribe in its sentence how or when such sentence shall be 

executed. Such matters are properly within the province of the convening authority. 
C. M. O. 60, 1892; 36, 1914, 3, 4. See also C. M. 0. 33, 1914, 5; Sentences, 87. 

It is not competent for a court-martial to sentence a man to be released and restored 
to duty upon the expiration of the period of confinement. C. M. O. 37, 1909, 3. 

169. Same^The law makes a sentence of dismissal mandatory in Army where officer is 

convicted of "Conduct unbecoming an officer and a gentleman," and a court-martial 
composed of naval officers should not refuse to accept for the service of which they are 
members the standard fixed by law to which officers of the Army must conform* in 
order to retain their commissions. C. M. 0. 49, 1915, 23. See also Conduct Unbecom- 
ing an Officer and a Gentleman. 6. 

170. Service — Service upon naval courts-martial is strictly recognized by statute as a duty of 

the very highest order, as is witnessed by the provision embodied in A. G. N.46; to the 



COURT. 129 

effect that no member of a general court-martial shall, after the proceedings are begun, 
absent himself therefrom, except in case of sickness, or of an order to go on duty from 
a superior officer, on pain of being cashiered. C. M. 0. 125, 1900, 2. 

171. Sessions of — Meeting at unusual hours — A general court-martial commenced the 

trial at 5.15 p. m. and completed the trial on the same day. The record disclosed 
many irregularities and errors, and the department stated: 

The court was not informed by the convening authority that this case was one of 
extraordinary urgency requiring to be tried at unusual hours or in undue haste. 
With reference to courts-martial in the Army, Congress, by the 94th article of war 
(which was in effect until March 2, 1901) provided that "proceedings of trials shall be 
carried on only between the hours of eight in the morning and three in the afternoon, 
excepting in cases which, in the opinion of the officer appointing the court, require 
immediate example." And a similar statute has been in efiect in England from a very 
early period. While there is no such law with reference to our Navy, the reasons gov- 
erning such enactments are equally applicable thereto. Thus, the object of the law, 
as stated by the Attorney General (11 Op. Atty. Gen. 141) was "to guard against 
improper secrecy." In Winthrop's Military Law (Vol. 1, p. 421) the purpose of the 
enactment was stated to be "to prevent the daily attendance upon the trial from being 
too protracted and onerous, and to obviate hasty action on the part of the court, and to 
afford an opportunity to the judge advocate to write up the daily record." In Hough's 
"Practice of Courts-Martial" (London, 1825) it is stated, with reference to the pro- 
visions of the English statutes limiting the hours of trial by courts-martial: 

" The clear intention of the article is, to prevent the possibility, except under any 
urgent circumstances, of the overfatigue of the mind, by which the interests of the 
service, or the due administration of justice, might be affected. Though at the assizes, 
which are held twice a year,before the judges of assize, it is not uncommon to continue 
their sittings till a very late hour, to insure an uninterrupted course of justice; still, 
there is a wide distinction between such cases, and those of a similar nature, whenever 
they fall under the cognizance of a general court-martial— in the former, there is fre- 
quently a popular feeling against the accused— publications are issued from the press, 
and, therefore, it becomes right and proper, not to suffer any delay to take place in the 
administration of justice. With respect to a general court-martial, the same causes do 
but rarely exist; added to which, those who are not used to a sedentary life, are not so 
well fitted to give a steady attention to any subject, which requires a constantly 
patient and watchful vigilance of the mind. It is, therefore, the interests of general 
practice, that have given a limit to the duration of the sittings of courts-martial." 
(p. 377). 

The present case strikingly exemplifies the consequences resulting from attempts to 
conduct a trial by general court-martial in undue haste, and at unusual hours. 
C. M. 0. 27, 1913, 11. See also Criticism of Courts-Martial, 66; Trials, 27. C. M. O. 
49, 1910, 11. 

172. Same— Temporary adjournments over holidays, etc. See Adjournments of Courts- 

Martlax, 1, 2. 

173. Same— The clause of A. G. N. 45 enjoining a daily session seems to be directory in 

character rather than mandatory. C. M. O. 27, 1898, 1. 

174. Same— An accused was charged with "Scandalous conduct tending to the destruction 

of good morals," the specification thereunder alleging that the accused, while judge 
advocate of a general court-martial, "in session at said yard," was under the influence 
of intoxicants. He pleaded guilty except to the words "in session at said yard." 
The department held that although the court was not actually meeting,at the time 
alleged it was "in session" within the definition of the expression, and that a court 
is "in session " during "temporary intervals of adjournment." C. M. 0. 104, 1896, 4. 

175. Signatures of members— The omission of a signature of one of the members of a 

naval court-martial to the findings and sentence will have no effect provided a legal 
quorum remained and signed. G. C. M. Rec. 24534. 

176. Statement of accused. See Statement of Accused. 

177. Statutory— There can be no plainer expression of the law than that in the case of a 

court-martial, their authority is statutory, and the statutes under which they proceed 
must be followed throughout. The facts necessary to show their jurisdiction must be 
stated positively. File 39S0-650, J. A. G., July 10, 1911, p. 4. 

178. Stubborn. See Criticism of Courts-Martial, 15, 19, 20, 35, 36, 3S, 48. 

179. Sufficiency of evidence. See Criticisms of Courts-Martial, 14. 



130 COURT. 

180. Summary courts-martial. See Summary Courts-Martial. 

181. Technicalities — Should not be introduced into naval court-martial procedure. See 

Common Law, 12. 

182. Trial— Conducted in undue haste. See Court, 171; Criticism of Courts-Martial, 

66. 

183. Undisputed facts. See Criticism of Courts-Martlal, 14. 

184. Same— Duty of court as to finding. C. M. O. 43, 1906. See also Court, 86-88. 

185. Usurp — Court shall not usurp functions of reviewing authority. See Adequate 

Sentences, 3-20; Criticism of Courts-Martial. 

186. Same— Court shall not usurp functions of judge advocate. See Court, 99; Judge 

Advocate, 61. 

187. Same— Court should not usurp functions of convening authoritv by trying men in 

joinder without authority. CM. 0. 10,1911,4; 42,1914,4. See also Joinder, Trial en t . 

188. Same— Judge advocate shall not usurp functions of court. See Judge Advocate, 

123-126. 

189. Vote, revealing — Members of a summary court-martial called upon to reveal their 

votes "before a court of justice in due course of law" in case of trial of Commander 
* * *. 1 Penna. Law Journal Reports, 356. 

190 % Same — Members of a summary court-martial disclosing vote or opinion. See Oaths, 47. 

191/ Same — The vote of the members of a general court-martial being a confidential mat- 
ter, it can not be known what it was. CM. 0. 125, 1900, 2; Voting, 1. 

192. Warrant officers — A warrant officer not being a commissioned officer, can not act 

as a deck court officer, and in a case where one acted as such the department stated 
that a deck court "so constituted has no legal status, has no jurisdiction, and that its 
acts are ab initio [from the beginning] null and void." (See Naw Regulations, 1913, 
R-502; C. M. 0.7, 1914,11.) File 27217-1648, Sec. Navy, March 24, 1915. C M. O. 
12, 1915,5. 

193. Same — Commissioned warrant officers may sit as members of general courts-martial. 

See Chief Boatswains, 2. 

194. Same — May convene a summary court-martial if actually in command of a naval 

vessel, but may not sit as a member. See Court, 196; Summary Courts-Martial, 
105. 
195 Same — May convene a deck court if actually in command of a naval vessel. See Deck 
Courts, 4. 

196. Same— The words "commander of any vessel" in A. G. N. 26 are construed by the 

Secretary of the Navy to include a warrant officer when he is actually commanding 
a naval vessel. C M. 0. 6, 1915, 5. See also Summary Courts-Martial, 7, 21, 105. 

197. Witnesses — Examination by court — Scope of. See Witnesses, 40-42. 

198. Same — Court has witnesses before it and can thus observe their appearance and 

manner. C M. O. 129, 1898, 6; G. C M. Rec. 304S5, pp. 701, 738. See also C. M. O. 
28, 1913, 6; File 26262-2445, J. A. G., March 3, 1916, p. 7; Evidence, 129; Witnesses, 76. 
The court is confronted with the witnesses and has opportunity for observing their 
demeanor before the court and determine the - weight to be given to their testimonv. 
File 26251-9574. 

199. Same — Court errs in allowing witnesses to state their opinions as to guilt or inno- 

cence of accused. C. M. O. 49, 1915, 12, 15; 22, 1916. See also Opinion, 15-17. 

200. Same— Exclusion of. See Court, 126, 127; Expert Witnesses, 10. 

COURTS, CIVIL. See Civil Courts. 

COURT OF CLAIMS. 

1. Documentary evidence required of department— Such documentary evidence as 

a plaintiff can himself produce, and which in an ordinary action at law or a suit in 
equity he would produce on his own behalf as a matter of course, the claimant here 
can not compel the defendants to produce through calls upon the departments. (In 
Re Calls for Evidence, 33 Ct. Cls. 354, 355.) File 26266-444, Sec. Navy, July 14, 1916. 

2. Jurisdiction. See Embezzlement, 25 (pp. 210-211). 

3. Law involved in claims— It is not believed that this department should, through means 

of a call by the Court of Claims, be required to advise counsel for claimants as to the 
law involved in their claims against the United States. File 26266-444, Sec. Navy, 
July 14, 1916. 

COURTS OF INQUIRY. 

1. Accuser— May not demand copy of record. C. M. O. 20, 1915, 6. See also Courts of 

Inquiry, 12. 

2. Action of department— When received the court of inquirv record must be reviewed 

and recorded in accordance with law. File 14625-183 : 25, April 9, 1912; J. A. G., 101. 



COURTS OF INQUIRY. 131 

3. Article 60 A. G. N.— Was not intended to restrict admissibility of court of inquiry- 

records in evidence where such records might have been admitted under general 
principles of the law of evidence; but was intended to enlarge the rules of evidence 
by authorizing the records of courts of inquiry to be admitted in evidence in certain 
cases where they would otherwise have been inadmissible, as for example, where it 
is necessary in the interests of justice to introduce against an accused person testi- 
mony previously given before a court of inquiry by a person other than the accused, 
instead of confronting the accused at his trial with such witness. C. M. O. 51, 1914, 6. 
See also C. M. O. 88, 1895, 13-16; File 26251-12895, 1917. 

4. Authentication — The proceedings of courts of inquiry shall be authenticated by the 

■ signature of the president of the court and of the judge advocate. C. M. O. 88, 1895 
13. See also C. M. 0. 12, 1904, 4; Courts of Inquiry, 21. 

5. Challenge— " Objection" to a member of a court of inquiry sustained by court. Ct. Inq. 

Rec. 4952, p. 29. 

6. "Commander cruiser squadron and commander in chief, detached squad- 

ron"— Convening courts of inquiry. C. M. 0. 6, 1915, 9. Seealso Convening Author- 
ity, 10, 28. 

7. Confession — Statements made by accused before a court of inquiry. See Confes- 

sions, 12. 

8. Constitution of — A court of inquiry shall consist of not more than three commissioned 

officers as members, and of a judge advocate, or person officiating as such. (A. G. N. 
56.) 

9. Same — " One officer" court of inquiry. See Courts of Inquiry, 38. 

10. Convening of— Courts of inquiry may be convened by any officer of the naval service 

authorized by law to convene general courts-martial. (Act of Aug. 29, 1916, 39 
Stat. 586.) See Convening Authority, 27. 

See File 26896-62, J. A. G., May 18. 1911, with reference to convening of courts of 
inquiry in cases of accidents, etc. 

11. Copies of record — Neither accuser nor defendant can demand. See Courts of In- 

quiry, 12. 

12. Same — Not furnished to interested persons — Neither the accuser nor the defendant 

before a court of inquiry can demand a copy of the proceedings. The evidence, of 
whatever nature is intended only for the officer convening the court. (Navy Regula- 
tions, 1913, R-422.) Where copy of a court of inquiry record is requested for use be- 
fore a civil court, the department will be governed by the provisions of General Or- 
der No. 121, September 17, 1914, paragraph 18 (c). File 26262-1705 : 3, J. A. G., May 1, 
1915; C. M. O.20, 1915, 6. 

Seealso File 547.5-04, Sec. Navy, June 24, 1904; 636-9, J. A. G., Oct. 10, 1905; 26261-69, 
J. A. G., June 14, 1909; 20971 :9, J. A. G., July 17, 1909; 26836-7 : 4, J. A. G., Mar. 3 
1910; 14, J. A. G., 330; 13 J. A. G., 326, June 11, 1904. 

13. Counsel. See Counsel, 23. 

14. Defendant— May not demand a copy of the record. See Courts of Inquiry, 12. 

15. Depositions — Used before courts of inquiry. See Depositions, 6. 

16. District attorney— To assist court of inquiry— Procedure to secure. File 9608-44 : 3, 

Sec. Navy, March 21, 1914. 

17. Evidence, as— The official record of a court of inquiry is admissible in evidence to 

prove what an accu-^d stated in his testimony before the court of inquiry, which testi- 
mony forms the basis of the charge of "perjury" for which tne accused is on trial. 
C. M. O. 51, 1914, 9. 

18. Same— "The voluminous record of the proceedings of the court of inquiry and of the 

testimony taken before it, and the various maps, diagrams, and exhibits appended 
to the record, give every indication of a patient, industrious, and exhaustive investi- 
gation. Under these circumstances the evidence taken before the court of inquiry 
was mutually accepted, by the Government and by the accused, as competent and 
sufficient evidence before the court-martial, subject only to the reservation that either 
party might, if desired, introduce additional evidence. The findings, however, of the 
court of inquiry were not, and could not be, in evidence before the court-martial ; could 
not, in any manner, legally or officially influence its proceedings, and hence could not, 
in any way, trammel or interfere with its action, but, having been the result of an 
investigation ordered in pursuance of law for the express information of the depart- 
ment, they are entitled, upon a full and final consideration of the case, to such weight 
as their accordance with the testimony and other evidence, both before the court of 
inquiry and the court-martial, may, in the judgment of the department, reasonably 
give to them. " C. M. 0. 41, 1888, 5-6. 



hi 



132 COURTS OF INQUIRY. 

19. Same— A general court-martial refused to allow the record of a court of inquiry which 

investigated matters that formed the basis of the charges and specification preferred 
against the accused to he introduced in evidence for the purpose of impeaching the 
testimony of a witness. The department held that under the rules of law any testi- 
mony given or statement made by a witness on a former occasion, whether under 
oath or not at the time, may be introduced for the purpose of impeaching his testimony 
if a proper predicate has been made by calling the attention of the witness to such 
evidence while upon the stand; and it does not matter whether such statement be 
part of a record or not. C. M. O. 88, 1895, 16. See also G. C. M. Eec. 6974; 7913; 
8164; 11279; 24258; 26651; Mullan v. U. S., 212 U. S. 516. 

20. Same— At several points during the progress of a general court-martial trial the judge 

advocate sought to introduce the record of this court of inquiry, but the court ruled 
against its admission upon the following grounds: 

1. That the proceedings of the court of inquiry could not be introduced for the sole 
)urpose of refreshing the memory of the judge advocate (who officiated as such before 
>oth courts), he offering to testify as a witness. 

2. That the record of the court of inquiry could be introduced only as evidence, and 
then only when oral testimony upon the points sought to be established thereby could 
not be obtained. 

3. That the confession of the accused made before the court of inquiry in the course of 
his testimony could not be admitted because the court was not satisfied that proper 
and timely warning was given the accused when his testimony was taken before the 
court of inquiry. 

It is the official duty of the judge advocate of a court of inquiry faithfully to record 
the proceedings and the testimony taken before such court, and he must attach his 
signature thereto. I am of opinion that such a record is therefore admissible, as 
would be any memorandum made by the witness at the time, for the purpose of refresh- 
ing his memory, whether or not he has an independent recollection in the matter. 
This, of course, is a different thing from introducing the record in evidence. 

Further, it would appear that this record should have been admitted in evidence 
under the previous rulings of the department, which were before the court, as soon 
as the court became satisfied that oral testimony on important features of the case 
sought to be established thereby could not be obtained. The exclusion of this evi- 
dence, however, in so far as it operated at all, was in favor of the accused, and therefore, 
in my judgment, does not in any way invalidate the proceedings, which appear to be 
in all other respects regular. C. M. O. 12, 1904, 3-4. See also File 995-04, J. A. G., 
Feb. 8, 1904; Courts of Inquiry, 3, 17; Witnesses, 96. 

21. Same— The department stated in a court-martial order that from the evidence ad- 

duced before the court of inquiry as well as before the court-martial the department 
was satisfied that certain events occurred. CM. O. 38, 1905, 2. 

Testimony before a court of inquiry is given under oath. C. M. O. 51, 1914, 5. 

The proceedings of courts of inquiry shall be authenticated by the signature of 
the president of the court and of the judge advocate, and shall, in all cases not 
capital, nor extending to the dismissal of a commissioned or warrant officer, be evi- 
dence before a court-martial, provided oral testimony can not be obtained. (A. G. N. 
60.) C. M. O. 88, 1895, 13. 

The evidence adduced before a court of inquiry is surrounded by all the solemnities 
of evidence taken before a court of record or before a court-martial. (Mullan v. U. S., 
42 Ct. Cls. 157, 176.) 

The evidence adduced and preserved before courts of inquiry is superior in every 
respect to depositions. (Mullan v. TJ. S., 42 Ct. Cls. 157, 176.) 

22. Expert witnesses— Fees for. C. M. O. 12, 1915, 13. See also Expert Witnesses, 4. 

23. False testimony before — The law provides for the punishment of persons who give 

false testimony before courts of inquiry. C. M. O. 51, 1914, 5. See also Perjury, 3. 

24. Findings— Of a court of inquiry as eAudence before a trial by general court-martial. 

C. M. O. 41, 1888, 5-6. See also Courts of Inquiry, 18. 

25. Foreign countries. See Jurisdiction, 53. 

26. Grand Jury— Court of inquiry compared with. See Jury, 2. 

27. Impeaching testimony— Use of a record of a court of inquiry as evidence to impeach 

the testimony of a witness. C. M. 0. 88, 1895, 16. See also Courts of Inquiry, 19. 

28. Index for. See Index, 3. 

29. Jeopardy, former— If a court of inquiry, after completing an exhaustive investiga- 

tion, should decide that the accused is not to blame and, therefore, recommends that 
no further action be taken, this is not an acquittal nor is it conclusive upon superior 
authority; so, as held by the Attorney General, if the court of inquiry finds the accused 



COURTS OF INQUIRY. 133 

was to blame and recommends that he be punished by the commander in chief, such 
recommendation and punishment imposed pursuant thereto does not bar subsequent 
trial by court-martial for the same offense. C. M. O. 7, 1914, 6, 9. See also File 
2639-04, J. A. G., March 23, 1904, p. 1; Peivate Reprimands, 3. 

30. Judge advocate— Is sworn to keep a true record of the proceedings of the court and 

the evidence in the case. CM. 0. 51, 1914, 5. 

It is the official duty of the judge advocate of a court of inquiry faithfully to 
record the proceedings and the testimony taken before such court, and he must at- 
tach his signature thereto. C. M. O. 12, 1904, 4; File 995-04, J. A. G., Feb. 8, 1904. 

Solicitor assigned as assistant and associate of a judge advocate of a court of inquiry. 
See Counsel, 49. 

31. Members of courts of inquiry— Exemption from other duties, etc. See Members 

of Courts-Martial, 1. 

32. Member of court-martial— The reading of the proceedings of a court of inquiry by 

a member of a naval court-martial, which is trying matters that grew out of the 
investigation made by such first-mentioned court is regarded as irregular, but in a 
case tried in May, 1882, in which the same irregularity occurred, the department un- 
qualifiedly approved the proceedings of the court. C. M. O. 89, 1901, 3. 

33. Midshipmen— Court of inquiry convened to investigate alleged irregularities of mid- 

shipmen at the Naval Academy. C. M. O. 22, 1915, 9. 

34. Nature of. See Courts of Inquiry, 39, 51. 

35. Oath — The law authorizes courts of inquiry to administer oaths to witnesses. C. M. O. 

51, 1914, 5. 

36. Same — Judge advocate of a court of inquiry is authorized by law to "administer oaths 

for the purposes of the administration of naval justice and for other purposes of naval 
administration." C. M. O. 5, 1916, 7. 

37. Object of— The object of a court of inquiry is to assist the convening authority in 

forming judgment as to whether a general court-martial should or should not be 
ordered. 15 Op. J. A. G. 273; File 4865-19, Sec. Navy, July 8, 1907. See also Courts 
of Inquiry, 51; File 26262-1194. 

The record and report of a court of inquiry are intended for the use and information 
of the officer ordering the inquiry, and any other use of them is discretionary. 13 
J. A. G., 326, June 11, 1904. 

38. "One-officer" court of inquiry. Ct. Inq. Ree. 5864; 6333; File 6692-212. 

39 . Same— One officer acted as a court of inquiry without a judge advocate. File 6692-212. 

40. Perjury— False testimony under oath before a court of inquiry will sustain a charge 

of "perjury." C M. O. 51, 1914,9. See also Perjury, 3; C. M. 0.88,1895,13. 

41. Proceedings— As used in A. G. N. 60. C. M. O. 88, 1895, 13. 

42. Purpose of. See Courts of Inquiry, 37, 51. 

43. Record— Signed by president and judge advocate. C M. O. 88, 1895, 13. See also 

C. M. 0. 12, 1904, 4; Courts of Inquiry, 4. 
Original record sent up to Congress for its information. File 8369-109:2, 1916. 

44. Record, copy of. See Courts of Inquiry, 12. 

45. Regulations — For a construction and interpretation of the Navy Regulations relating 

to courts of inquiry. See File 26806-62, J. A. G., May 18, 1911. 

46. Representative — Member of the House of Representatives as a witness before a court 

of inquiry. See Congress, 12. 

47. Revision— Navy Regulations, 1913, R-427, permits new evidence to be received and 

recorded on revision of courts of inquiry, and previous witnesses to be recalled and 
reexamined, provided that in either case all parties to the inquirv are present if they 
so desire. File £6250-802:7, Sec. Navy, Aug. 5, 1916. See also File 2639-04, J. A. G., 
March 23, 1904, p. 1; File 26250-802:7, Sec. Navy, Aug. 5, 1916. 

48. Secretary of the Navy— Action of, on record. See Courts of Inquiry, 2. 

49. Senate resolution, reopening on— The Senate passed a resolution requesting the 

Secretary of the Navy to reopen and review the findings of a certain court of inquiry 
in the case of an officer of the Navy, who had been permitted to resign, "with the 
object of ascertaining whether these findings were based upon facts of established 
record, and to take and consider any additional evidence or facts which may he pre- 
sented bearing on this case, and to render his findings on the whole record so made.'' 
The case was reopened and an exhaustive investigation and review made. A careful 
and sympathetic consideration of the testimony submitted by a large number of 
witnesses of unimpeachable character, of diverse'stations and duties, and varying in 
grades from enlisted men of the lowest ratings to officers of the highest ranks. 'left 
possible no other conclusion but that t he findings of the court of inquiry were justified 
beyond any reasonable doubt. File 8369-109:2, September, 1916. 



134 COURTS OF INQUIRY. 

50. Testimony— Given under oath, recorded pursuant to law, and the record is required to 

be filed in the Navy Department. C. M. O. 51, 1914, 5. 

51. Trial, not a— The proceedings of a court of inquiry is in no sense a trial of an issue or of 

an accused person. This court performs no real judicial function, but is convened 
only for the purpose of informing the department in a preliminary way as to the facts 
involved in the inquiry. C. M. O. 7, 1914, 6. See also Courts of Inquiry, 37. 

An inquiry of this nature is peculiar. There is, strictly speaking, no prosecution, 
although the officers concerned are necessarily on the defensive. File 7893-03, J. A. G. , 
Sept. 22, 1903, p. 2. 

If officers are exonerated they should be so advised. File 2639-04, J. A. G., Mar. 
23, 1904, p. 3. 

52. Witnesses — Courts of inquiry have power to issue like process to compel witnesses to 

appear and testify as United States courts of criminal jurisdiction; and refusal of any 
person to appear and testify when so subpoenaed is punishable as a misdemeanor. 
(Act of Feb. 16, 1909, sees. 11, 12, 35 Stat. 621, 622.) 

53. Same— Testify under oath. C. M. O. 51, 1914, 5. 

54. Same — Member of House of Representatives. See Congress, 12. 

55. Same— Court may interrogate witnesses and questions of members may be propounded 

without being first submitted to the court. The court during the examination of 
witnesses, acting as judges, may propound leading questions. (See Wigmore, sec. 
784.) File 2626-1194, J. A. G., June 16, 1911, pp. 7-8. 

56. Witness lees. See Expert Witnesses, 4. 

«■ COURT-MARTIAL " AT THE NAVAL ACADEMY. 

1. Constitution— " Not less than three commissioned officers." C. M. 0. 31, 1915, 10-12. 
See also Hazing," 6. 

COURT-MARTIAL ORDERS. 

1. Acquittals— In cases where officers are acquitted, court-martial orders will be pub- 

lished only in exceptional cases. File 26504-189, Sec. Navy, Mar. 18, 1910. 

An acquittal was considered an exceptional case and published in C. M. O. 5, 1913. 

The policy of the department is now to publish all acquittals. See C. M. 0. 32, 1915* 
36, 1915; 38, 1915; 41, 1915; 21, 1916; 40, 1916. See also Acquittal, 6. 

2. Arrest, released from— Court-martial orders should, in proper cases, contain a state- 

ment that the accused was released from arrest and restored to duty. See Arrest, 9; 
Convening Authority, 4. 

3. Bulletin. See Bulletin in Court-Martial Orders. 

4. Charges and specifications— Tabulations as form for. C. M. O. 35, 1915, 7. See also 

Charges and Specifications, 53. 

5. Dating of — Commencing with C. M. O. 49, 1914, the practice was instituted of dating 

monthly court-martial orders as of the last business day in the month covered by the 
subject matter thereof, instead of dating them as of the "first business day in the follow- 
ing month. This change was adopted as a matter of convenience, and" as a result the 
court-martial orders for each year will embody the data relating to all cases reviewed 
during that year. C. M. 0. 1, 1915. 

6. Same— Court-martial orders should be dated as of the date of final action — In cases 

where the President confirms the sentence, the date of the court-martial order should 
be of the date of such confirmation. But see C. M. O. 30, 1914; 32, 1914, the dates of 
which are in error. 

7. Same— C. M. O. 22, 1896, is dated "February 19, 1895," instead of "February 19, 1896." 

C. M. O. 22, 1896. See also Errors in Court-Martial Orders, 2. 

8. Decisions and instructions ol department— Contained in court-martial orders are 

in such easilv accessible form that ignorance of or inattention to them is inexcusable. 
CM. 0.42,1915,7-8. 

9. Errors— In court-martial orders. See Errors in Court-Martial Orders. 

10. Error of court — In a case where the action of a general court-martial was irregular, 

the Secretary of the Navy expressly stated that "in order that its error may be called 
to the attention of the court, it is directed that the same be published in a court- 
martial order." C. M. O. 49, 1915, 11. 

11. Evidence, as— The record showed that after the trial had been finished and the judge 

advocate had submitted the case to the court without remarks, the court decided to 
call for a certain court-martial order, and that it be appended as a part of the record as 
evidence. The purpose of this step did not appear from the record. Its object may 
have been to rebut the evidence of good character, which the accused had introduced; 



COURT-MARTIAL ORDERS. 135 

and if this were the case, it should have been done before spreading upon the record 
the facts that the defense had closed and that the case had been submitted by the 
judge advocate. This step may also have been due to the fact that the court desired 
to have the evidence of previous convictions introduced. If this were the case the 
evidence should nave been introduced at its proper place and the matter clearly set 
forth in the record. C. M. O. 11,1897,3. See also Court-Martial Orders, 26-28. 
Courts-martial may take judicial notice of court-martial orders. See Court-Mar- 
tial Orders, 27. 

12. Fleet and station court-martial orders— It is not necessary for the convening 

authority of a fleet or station general court-martial to delay publishing a court-martial 
order, awaiting information of possible special action by the Secretary of the Navy. 
There is no objection to delaying publication of a court-martial order for a reasonable 
time after the record in such case should, in due course, have arrived at the depart- 
ment; but publication of such, orders should not be unduly delayed because of the 
possibility that some special action may have been taken by the Secretary of the Navy, 
which in any event, is not required to be included in the court-martial order issued 
by the convening authority. File 26504-210, Sec. Navy, June 11, 1914; C. M. O. 22, 
1915, 7. 

13. Fleet court-martial order— Published in full in a Navy Department court-martial 

order. C. M. 0. 14, 1879. 

14. General summary— Explained. See General Summary in Court-Martial Orders. 

15. Judge advocates — Should carefully read and study court-martial orders in order that 

they may follow precedents of the department and avoid the common errors. This 
is indicated in C. M. 0. 1, 1914, p. 6, which states: "The department, in court-martial 
orders, has repeatedly condemned the tendency of judge advocates in some cases to 
usurp the functions of the court," etc. 

16. Judge Advocate General— In a certain case suggested that the department's views 

upon the matters contained in his opinion be embraced in the court-martial order 
promulgating the case, for the guidance of general courts-martial in future cases 
where similar questions arise. C. M. O. 88, 1895, 15. 

17. Members — General courts-martial in deliberating upon sentences, should consult the 

court-martial orders published periodically by the department, in order that the 
sentences adjudged for the various offenses therein enumerated mav be noted and 
considered. C. M. O. 1, 1913, 4. Bound by oath to observe. File 26251-12159. 

18. Same — Members of general courts-martial should have copies of the monthly court- 

martial orders published by the department. C. M. O. 22, 1913, 4. 

19. Names of members and judge advocate— Published in court-martial order. C. 

M. O. 38, 1915, 3. 

20. Numbering of— A court-martial order in 1890 was numbered 61^. C. M. O. 61§, 1890. 

21. Same— The last court-martial order published in 1909 was No. 45, dated December 30, 

1909, and the first eleven court-martial orders published in 1910 were numbered 46 to 56, 
inclusive. A new series was then started, the first court-martial order being num- 
bered 12, since eleven court-martial orders had already been published in 1910. This 
will explain why there are no court-martial orders in 1910 corresponding to Nos. 1-11, 
inclusive, or subsequent to No. 56. File 26504-243, J. A. G., Sept. 10, 1915. See also 
File 26504-276, J. A. G., April 6, 1916. 

22. Officers— Court-martial orders, in proper cases, should show that the officer was re- 

leased from arrest and restored to duty. See Arrest, 9; Convening Authority, 4. 
Officers held accountable f6r ignorance of information contained in court-martial 
orders. See Court-Martial Orders,, 18, 39-42. 

23. Officer and enlisted man— Court-martial order contained the cases of enlisted men 

and officers. C. M. O. 12, 1900. 

24. Posted. See Court-Martial Orders, 30. 

25. Praised by a civilian magazine writer— The following comment upon court-martial 

orders is quoted from an article published in a well-known periodical diu-ing the year: 
"For years the Navy has been issuing as a regular part of its routine a monthly 
leaflet or bulletin that contains the summary of court-martial cases for that particular 
month. The list itself is brief, but following under the heading of 'Remarks,' is a 
commentary on thespecial casesthat have occurred. It isaconrse in law. It bristles 
with pointed and biting phrase where it points out to officers of courts-martial their 
errors of law and procedure; it argues, explains, analyzes, expounds, and condemns 
the court unsparingly when needed; it quotes from the Federal courts' decisions and 



136 COURT-MARTIAL ORDERS. 

from the decisions of State courts. The thoroughness with which this legal laboratory 
work is done under that innocuous heading of 'Remarks' is a guaranty that a legal 
error or violated regulation is as little likely to slip by as it would be in the most 
exacting civil court of appeals." Annual Report of J. A. G., 1915. 

26. Previous convictions— A counsel for an accused officer addressed a letter to the Sec- 

retary of the Navy, in which he contended that when evidence of previous convic- 
tion was introduced the Navy Department general court-martial order contain- 
ing evidence of such previous conviction should have been read aloud to the court 
by the judge advocate. The department held that it was not necessary to read the 
order to the court. C. M. O. 9, 1908, 3. See also G. C. M. Rec. 30485, Exhibit 7. 

27. Same— The following telegram was received from a general court-martial which was 

trying an officer: "Is court authorized to introduce printed court-martial order as 
evidence of previous conviction in * * * case? If not, will department forward 
duly authenticated copy of record; latter not here." The department replied "Courts 
may take judicial notice department's printed court-martial orders. See Forms of 
Procedure, pages 137 and 141." File 26251-8681:4; G. C. M. Rec. 28613. See also 
G. C. M. Rec. 31925, p. 31, and Exhibit 4. 

28. Same — The department approved without comment the case of an officer in which the 

judge advocate offered as evidence of previous conviction a printed copy of a depart- 
ment court-martial order, which was accepted by the court, but no copy of such court- 
martial order was appended to record. G. C. M. Rec. 28560. See also G. C. M. Rec. 
31925, p. 31, and exhibit 4. 

29. Public reprimand — Court-martial order should show that a public reprimand involved 

in a general court-martial sentence was administered, etc. But see C. M. O. 7, 1912, 7; 
9, 1913, 3. 

30. Publicity to be given— It is the desire of the department to increase the exemplary 

effect of the punishments adjudged by general courts-martial, and to impress more 
strongly upon the enlisted personnel the extent to which offenders are subject to pun- 
ishment; likewise, to emphasize the large and increasing percentage of deserters who 
are apprehended and convicted, and the frequency with which fraudulent enlistments 
are detected. 

In addition to publishing the general monthly court-martial orders, the department 
believes it will be conducive to better discipline, and tend to a diminution of desertion 
if there be published to the enlisted force reports of specific cases in which men, form- 
erly members of the same command, have been apprehended, convicted, and sen- 
tenced. 

Hereafter, therefore, in pursuance of this policy, upon the receipt of the usual letter 
notifying a commanding officer of the conviction of a man formerly attached to his 
command, a brief extract will be made from such letter, and copies thereof posted in 
several appropriate places in the ship, barracks, etc., in such manner as best to serve 
as a warning to others and to secure the desired deterrent effect of the conviction and 
adjudged punishment. 

The accomplishment of this deterrent effect depends largely upon the notoriety given 
to the matter, particularly among the offenders' former comrades. Therefore, in order 
that this system may operate as a restraining influence upon others as far as possible, 
and to obtain the most efficient results therefrom, it is directed that publicity be given 
to the convictions by general courts-martial upon receipt of notice thereof, as above 
indicated. C. M. O. 16, 1912, 2-3. 

31. Read on board ship— A court-martial order stated: " This order will be read at muster 

on the quarter-deck of every vessel of the Southern Squadron, Asiatic Fleet, on the 
first Sunday after receiving it. " C. M. O. 29, 1903. 

32. Reflection— A court-martial order stated: "The publication of this general court- 

martial order carries with it no reflection upon any witness who testified before the 
court." C. M. O. 214, 1901. 

33. Regulations— Court-martial orders "Have full force and effect as regulations for the 

guidance of all persons in the naval establishment. " See Court-Martial Orders, 39. 

34. Secretary of the Navy, action of— Not necessary to publish in fleet and station 

court-martial orders. See Court-Martial Orders, 12. 

35. Sentences— Court-martial orders should be consulted in order to secure uniform sen- 

tences. See Court-Martial Orders, 17. 

36. Specifications abbreviated— In some cases the specifications printed court-martial 

orders have been abbreviated, merely stating the substance. C. M. O. 21, 1885. 

37. Tabulated statements— In monthly court-martial orders, show how offenses should 

be charged in certain cases. C. M. O. 25, 1914, 5. See also Charges and Specifica- 
tions. 53. 



COURT-MARTIAL ORDERS. 137 

38. Title of— Court-martial cases were first published in General Orders (until Jan. 9, 1877). 

Later they were published as "General Court-Martial Orders." (Beginning Feb. 
4, 1879.) This title was changed to "Court-Martial Order" beginning with C. M. O. 
1, 1911. 

39. Weight of— The Navy Regulations, 1913 (R-901-3) expressly provide that court- 

martial orders "shall have full force and effect as regulations for the guidance of all 
persons in the Naval Establishment;" and the department has emphatically an- 
nounced that court-martial orders are published by the department for the informa- 
tion and guidance of all officers in the service, and that they may be held accountable 
for ignorance thereof when occasion arises in which they should be governed by in- 
structions contained in such orders. C. M. O. 33, 1912, 3; 49, 1914, 5; 12, 1915, 11. 
Note. — The above quotation from the Navy Regulations appears at the head of Court- 
Martial Order No. 6, 1915, and all subsequent monthly court-martial orders. See also 
File 26251-12159, Sec. Navy, Dec. 9,1916, pp. 2, 10. 

40. Same — They are "published for the information of the service," and "set forth in concise 

form the essentials of legal procedure" "with the object of guiding" courts-martial in 
conducting trials. C. M. O. 5, 1914, 5; 7, 1914, 14. See also C. M. O. 25, 1916, 2. 

41. Same — Courts-martial in deliberating upon sentences, should consult the court-martial 

orders published periodically by the department, in order that the sentences adjudged 
for the various offenses therein enumerated may be noted and considered. C. M. O. 
1, 1913, 4. 

42. Same — All remarks made by the department in acting upon general court-martial cases 

and which the department deems proper for publication to the service at large are 
printed in Court-Martial Orders. File .26504-190. 

COVER PAGE OF RECORDS. 

1. "Copy waived" — Not only should "copy waived" be placed on the cover page of a gen- 

- eral court-martial record, but the waiver should be appended last. CM. 6.21,1910,11. 

2. Date— Of trial on front sheet of a general court-martial record, should be the correct date. 

CM. 0.27, 1913, 12. 

COWARD. 

1. Midshipman— A specification under "Conduct to the prejudice of good order and 
discipline" alleged that accused called another midshipman "a sneak and a coward." 
C.M.O. 128, 1905, 4. 

■« COWARDICE." 

1. Officer — Charged with— In that he kept out of danger at the time of the capture of an 
enemy ship. G. O. 57, June 9, 1865. 

COWARDLY AND INHUMAN CONDUCT TO THE SCANDAL AND DISGRACE 
OF THE NAVAL SERVICE. 

1. Enlisted man— Charged with. C.M.O. 37, 1909, 7. 

CREDIBILITY OF WITNESSES. See Self-Incrimination, 11, 12; Witnesses, 51, 52. 

CRIMINALS. 

1. Refuge for— Government property should not be a haven for. 

2. Discharged— And turned over to civil authorities. See Civil Authorities, 8, 12; 

Convicts, 2. 

3. Enlistment of— To escape punishment by civil courts. See En JSTments, 5. 

CRIMINAL CODE (35 Stat. 1088). 

CRIMINAL NEGLIGENCE. C M. O. 35, 1914, 4. 

CRIMINAL PROCESS. See Civil Authorities; General Order No. 121, September 
17, 1914; Jurisdiction. 

CRITICISM OF COURTS-MARTIAL. 

1. Acquittal— Courts-martial criticized for acquitting accused. See Criticism of Courts- 

Martial, 18-22. 

2. Adequate sentences— Criticism for adjudging inadequate sentences. See Adequate 

Sentences. 

3. Animadversion— Convening authority may express animadversion upon courts- 

martial, the prosecution, administration of a command, etc. File 7719-03, Sec. Navy, 
Nov. 18, 1903. See also Criticism of Courts-Martial, 35. 



138 CRITICISM OF COURTS-MARTIAL. 

4. Appeal— Member of court-martial appealed against criticism of convening authority 

See Criticism of Courts-Martial, 35, 36. „ _ 

5. Carelessness, gross-C. M. O.78,1905,i; 14,1913,5. See also Court, 10; Criticism of 

6. CensurS! iTo! 23, 1910, 3; 10, 1912, 8; 14, 1913, 5; 22, 1913, 5. See also Criticism 

7 Compromise— Between those members who believed accused guilty and others who 

rSfevThim not gSy G. O. 68, Dec. 6, 1865, quoted in File 7719-03, Sec. Navy, 
Nov. 18, 1903. See also Criticism of Courts-Martial, 35. 

8 Convening authority-General court-martial may censure members. See Criti- 

9. S*Z-i^yt^^-Mzy censure members. See Criticism of Courts- 

10 Departments-May reprimand, censure, criticize, commend, etc. See Commenda- 

toryLetters,2; Criticism of Courts-Martial, 35,36; Secretary of the Navy, 

11 Discipline of the Navy— "While the commissioned officers of the court hold in such 

light estimation the discipline of the Navy, and have such mi d ideas as to the gravity 
of offenses committed against its laws, the subordmates m all degrees can not be ex- 
pected to consider them more seriously." See Adequate Sentences, 13 
12. "Due form and technically correct-Court errs if it pronounces faulty charges 
lind specifications in "due form and technically correct." C. M. O. 35, 1915, 6-7; 
File 26251-12159, Sec. Navy, Oct. 19, 1916. See also Court, < 3. . 

13 Errors in procedure-These errors in procedure and omissions seem to indicate negb- 

gence and carelessness on the part of the court and of the judge advocate, and are 
most reprehensible and go far to defeat the objects for which courts-martial are m- 
SSded! and Shi case are more than sufficient to render the entire proceedings m- 

14 Fa7ts d undisputed-"The department has heretofore announced that it is not its 

'desire or policy to coerce courts-martial in their judgment of cases when the facts.are 
in dispute, or there is such a conflict in the evidence that reasonable men might differ 
as to the facts established thereby '; but that, when 'there is no conflict whatever in 
the evidence, all material allegations of the specifications being clearly established 
thereby, and the only difficulty existing is one of law, a different question is pre- 
sented Under such circumstances, decisions of the courts, opinions of law officers 
of the 'Government, or decisions of the department based thereupon, are not to be 
liehtlv disregarded by courts-martial without incurring the rail measure of responsi- 
bility which must be ascribed to them for the resulting miscarriage of justice 
(C M O 4 1913 57 See also United States v. McGlue, 26 Fed. Cas., 1095.)" 
C M O 88,' 1905; 14; 43, 1906; 6, 1908; 4, 1913 57; 24 1914, 7; 29 1914, 9; 51, 1914 3; 
28 1915 3; 32, 1915; 36, 1915, 2; 25, 1916, 1; File 262ol-12C4o, Sec. Navy, Aug. /, 1916; 
262151-12159 Sec Navy, Dec. 9, 1916, p. 2; G. C. M. Eec. 323S8.. 

Where there is no conflict in the evidence, all material allegations of the specifica- 
tions being established thereby, naval courts-martial are to be governed by the deci- 
sions of the Federal courts, opinions of law officers of the Government, and decisions 
of the Secretary of the Navyf C. M. O. 25, 1916, 4. See also Secretary of the 

1J5 Findings, inconsistent-It will readily be seen that it is a miscarriage of justice 
when a court, with such plain facts before it, arrives at such contradictory findings 
upon a charge and specification of a charge. And, furthermore, the refusal to mate- 
rially correct such findings when the error is pointed out by the department, consti- 
tutes a naked nonconcurrence with the disciplinary acts of Congress and the Articles 
for the Government of the Navy, approved by the President, which each member of 
a court of justice is bound by oath to uphold. C. M. O. 6, 1908, 5. m 

16 Same— Where a general court-martial entirely ignored instructions in the depart- 
ment's letter, and caused a miscarriage of justice by obstinately adhering to theur 
opinion and rendered a finding wholly inconsistent with the evidence, the depart- 
ment stated that "the court thus signally failed in its duty, and its conduct is sub- 
ject to censure." C. M. O. 42, 1909, 14. See also C. M. O. 43, 1906, 3; 6, 1908, 6. 

17. Finding, interlineations. C. M. O. 28, 1915. 

18 Findings and acquittal— Not in accord with evidence. See Acquittal, 7, 8, 10, 
Criticism of Courts-Martial, 19-22. 



CRITICISM OF COURTS-MARTIAL. 139 

19. Same — Where a court twice adhered to its findings and acquittal when the facts were 

not in dispute and clearly showed the guilt of the accused, the department stated: 
"It is considered that the action of the court in obstinately adhering to its acquittal 
in this case notwithstanding the evidence, and the decisions to which it had been 
referred, exhibits a tendency to make law rather than to administer the law, and 
deserves the severe animadversion of the department. C. M. 0. 14, 1914, 5. 

"The department, accordingly, disapproved the rinding and acquittal in this case in 
order that it may not be accepted as authority for persons in the service to take trips to 
distant points without thinking to request permission from their commanding officers 
for leave of absence sufficient to cover the journey; and also in order that it may not 
mislead courts-martial into thinking that men who, while absent with or without per- 
mission, are arrested by the civil authorities and held in confinement for extended 
periods due to their own misconduct, as evidenced by conviction and sentence by 
the civil courts, are, nevertheless, in a duty status or in a status of being on authorized 
leave and entitled to be paid by the Government out of naval appropriations during 
such time as they are in a prison expiating the sentence of a civil court adjudged in 
consequence of misconduct of which they have been found guilty." C. M. O. 14, 
1914, 5. 

20. Same— It is considered that the action of the court in obstinately adhering to its 

acquittal in this case notwithstanding the evidence, and the decisions to which it had 
been referred, exhibits a tendency to make law rather than to administerthe law, and 
deserves the severe animadversion of the department. C. M. O. 14, 1914,5. See also 
C. M. 0.1,1914, 8; Court, 113; C. M. 0.28,1915; 32, 1915; 36, 1915; 38, 1915; 41, 1915, 9. 

21. Same — In a case where an officer was charged with "Culpable inefficiency in the per- 

formance of duty " and was acquitted, the Secretary of the Navy, after a review of the 
evidence, disapproved the finding, saying, by inference, that the court had shielded 
the officer accused by unjustly condemning another officer, and that if upon the state 
of facts shown "no naval officer can be punished therefor, the responsibility for such 
impotent conclusion shall always rest solely upon officers composing courts-martial 
and not upon the Navy Department." C. M. O. 3, 1884. See also file 7719-03. 

22. Same— Where an officer was acquitted by the court on a charge of "Culpable negli- 

gence and inefficiency in the performance of duty " and the court adhering to its find- 
ings and acquittal when it was reconvened for revision, the department stated : That 
an officer thus proved, by his own admission, to have been inefficient in the perform- 
ance of the duties assigned to him, and inefficient in a most aggravated degree, should ■ 
be acquitted— and fully and honorably acquitted— by even four of the seven members 
of the court, is a startling revelation * * *. Surely the members of the court who 
voted "fully and honorably" to acquit the accused under such circumstances could 
not have appreciated the importance of the duty devolving upon them to guard and 
maintain the efficiency and high standards of the naval service. 

"The department deeply regrets that the names of those officers who succeeded in 
making the court record such findings, wholly without support from the evidence, 
must remain unknown, and it is unfortunate indeed that the remaining members of 
the court— for there must have been such— who acted in accordance with the undis- 
puted evidence of" the accused's guilt, "can not be separated from those whose action 
in this case must tend to lessen the confidence of the public in the efficiency of the 
naval service." G. C. M. Rec. 23553; file 26251-4527, Sec. Navy, Apr. 22, 1911. 

Concurring in the recommend atioo of the Bureau of Navigation the Secretary of 
the Navy addressed letters of admonition to the members of a general court-martial 
stating in part: " While the department is unable to state which of the officers com- 
posing the court voted for acquittal or to ascertain how any member voted, in view 
of the oath required by law, which prohibits each member from divulging his vote 
unless required to do so by due process of law, I can not, however, believe that the 
acquittal of Lieutenant * * * represents the opinion of more than a bare majority 
of the members. In the absence of positive proof to the contrarv, I am unwilling to 
believe that the ideals of duty and responsibility of all the members of the court' are 
so low as to exonerate Lieutenant * * * of neglect of dutv. File 26251-107SS, See. 
Navy, Nov. 19, 1915. 

23. Forms of Procedure— Violations of instructions contained in. See Criticism of 

Courts-Martial, 36. 

24. Glaringly inadequate sentence. See Adequate Sentences, 15: Criticism of 

Courts-Martial, 35. 

25. Gross carelessness— Of court and judge advocate. See Court, 10; Criticism of 

Courts-Martial, 5. 



140 CRITICISM OF COURTS-MARTIAL. 

26. " Honor and dignity of Navy"— The findings and acquittals of the court were disap- 

proved by the convening authority, who stated: 

"The action of the court in this case shows a decided lack of appreciation of the 
honor and dignity of the Navy, but as the commander in chief has exhausted his power 
in the premises, he can only place the evidence of his disagreement on the record." 
CM. 0.5,1913,7. 

27. " Incapacity or disregard of duty." See Criticism of Courts-Martial, 35. 

28. Irregularities — Numerous minor irregularities in record. C. M. O. 28, 1915. 

29. Judge advocate— Criticized, etc. See Judge Advocate, 13-14, 49-50, 67-69. 

30. Law— Imposes on courts-martial, in all cases of conviction, a duty to adjudge punish- 

ment adequate to the nature of the offense. See Adequate Sentences, 2-20; Criti- 
cism of Courts-Martial. 

31. Same— Courts-martial must administer law as it stands and not modify it so that it 

might accord with their own notions of justice. See Adequate Sentence, 6; Criti- 
cism of Courts-Martial, 35. 

32. Lenient sentences. See Adequate Sentences, 3, 10; Court, ill; Criticism of 

Courts-Martial, 55. 

33. Ludicrously inadequate sentences. See Adequate Sentences, 11. 

34. " Making law." See Court, 113; Criticism of Courts-Martial, 20. 

35. Member of general court-martial— Appealed and protested, against the criticism 

of a convening authority— The following memorandum in the matter of the protest 
of a member of a general court-martial relative to comments by the Commander in 
Chief of the Asiatic Fleet in Fleet General Court-Martial Order No. 22, is published for 
the information of the naval service: 

The protest of this officer against the action of the convening authority in Fleet Gen- 
eral Court-Martial Order No. 22 has been considered with the utmost care by the 
department. This officer was a member of a general court-martial, convened by the 
commander in chief for the trial of an officer of the Navy upon three charges— "Drunk- 
enness," "Scandalous conduct tending to the destruction of good morals," and 
" Falsehood. " The court found the accused guilty of the first two charges, and not 
guilty of the third charge, and sentenced him to be reduced five numbers in his grade. 
Three members of the court, of whom this officer was one, recommended the accused 
to the clemency of the revising power. The convening authority returned the record 
of proceedings to the court for a reconsideration of the findings and sentence, express- 
ing his astonishment at the finding of "not guilty " upon the third charge, and calling 
the attention of the court to section 1624, par. 51, of the Revised Statutes, and to para- 
graphs 3 and 4 of article 1905 of the Navy Regulations which, in substance, provide 
that it is the duty of courts-martial to adjudge an adequate punishment for offenses of 
which an accused is convicted, and that mitigating circumstances, if any appear .may be 
reported to the convening authority as grounds for recommending clemency. (Navy 
Regulations, 1913, R-808, R-811.] Upon reconsideration, the court decided to adhere 
to its former findings and sentence. The convening authority thereupon approved 
the proceedings and findings upon the first and second charges, and disapproved the 
finding upon the third charge and the sentence , expressing the opinion that the finding 
upon the third charge should have been " guilty, " and that the sentence imposed was 
so inadequate for the offenses of which the accused was found guilty that it ought not 
to serve as a precedent in future cases. 

The result of this action by the convening authority is that the officer tried escapes 
punishment altogether, as no sentence can be carried into execution which has been 
disapproved by the reviewing authority. No question, therefore, which concernsthe 
accused officer is before the department , which is without power in the premises. 

_ In his review, however, of the proceedings, the convening authority adversely criti- 
cized the court for its action, and expressed his intention not again to assign the three 
officers who joined in the recommendation for clemency to dutv as members of courts- 
martial. It is unnecessary to set forth in full the criticism which, with a discussion of 
the evidence, appears in the General Court-Martial Order referred to. It is enough 
to say that it was extremely severe. Against this criticism this officer protests and 
appeals to the department for redress. 

This protest and appeal, forwarded through military channels, comes to me bearing 
the indorsement of the convening authority, asserting that the action which he took 
upon the court-martial was within the limits of the authority conferred upon him by 
law, regulations, and practice; also an indorsement by the Bureau of Navigation, sub- 
mitting that the officer who appealed proceedsupon a mistaken view of his rightsin the 
premises, and that "the action of the commander in chief in this case should be fully 



CRITICISM OF COURTS-MARTIAL. 141 

S£ S a +ffi^ UpP ° r + i d ' ^ d tha / m order should ^ Published looking to the reforma- 
tion of the apparent lax ideas of certain officers of the Navy, when members of e3 
courts-martial convened to try one of their comrades. " memoers ol general 

fonhe a SlveSle^n^7p' anth0Tity fa derived fr ° m artlcle 38 of the " Ar » s 

o N rSS s Tr^ 

zu, 191b (39 Stat. 586). See Convening Authority, 27 1 USUil 

« 5a rnp e r, p c i 1 I ?? lander m chief ' therefore, of a fleet or squadron in foreign waters has the 
same^nght to convene a general court-martial as the President or thf S ex?et2y of lit 

deIt h h e nr fh V ^5 g f ut ?°^ it 5 r is the reviewing authority, except where the sentence is 
aeatn or the dismissal of a commissioned or warrant officer (Article 5S « A rSc *„ 

The language of the Supreme Court in the case of Runkle v. United states r l » TT o 
Sl'amhorirfanni »' he If*^!* end duty of the President Um h s the review! 

■J5SS3&Ei3SB!7 LaW md Pre <*<^-" -eond edition, voiunre 1, page 

MMSggSHE 

^ithisdutytoindulgfufredS^ 



142 CKITICISM OF COURTS-MARTIAL. 

where practicable, confine himself to comments upon facts, and, rather than resort to 
direct strictures upon individuals, should prefer or cause to be preferred against them 
formal charges. Such strictures, however, are in some cases quite legitimate and can 
not be avoided. In such cases, if the party reflected upon demands a trial by court- 
martial for the misconduct imputed, his application can not in general fairly be 
denied." 

The practice in the War Department, as well as the Navy Department, has been 
in accordance with these statements of Winthrop. There have been very many 
instances of severe criticism of courts-martial by the reviewing authority, ft would 
be burdensome to recite all of such instances, but some of them may, with profit, be 
referred to. 

A seDtence was disapproved by the Secretary of the Navy, as inadequate, the Sec- 
retary saying: "Yet the public is to be informed that a court of officers of the Navy 
consider this capital offense, attended by no circumstances of mitigation, sufficiently 
punished by suspension for six months without pay, and with pay for the same 
period, the latter being equivalent to leave of absence for six months. The depart- 
ment declines to outrage public opinion and its own sense of justice, or to mislead the 
. younger officers of the Navy, by approving a sentence so glaringly inadequate." 
G. O. 58, June 29, 1865. 

In a case where the accused was charged with failing to do his utmost to capture or 
destroy an enemy's vessel, the court adjudged him "guilty of the charge in a less 
degree than charged," and sentenced him to be suspended from duty on leave pay for 
two years. The Secretary of the Navy returned the record to the court for a revision 
of the finding, whereupon the court, upon revision, found the accused "guilty," but 
awarded the same sentence as before. The Secretary disapproved the sentence as 
inadequate, saying, among other things: "The court, in this case of conviction of a 
capital offense, has adjudged a punishment which is obviously nothing more than a 
nominal punishment, if it be even as much. Suspension from duty for two years on 
'leave pay' is, in itself, nothing more than leave of absence for the same period. * * * 
Such punishment as this no officer could obtain from the department as a favor. The 
department is therefore forced to conclude that in awarding this pretended punish- 
ment the court-martial * * * has disregarded the law. It may be that the court, 
or members of it, deemed the law under which the accused was arraigned one of a 
harsh character; but even admitting that it be so, it is still law, and they were bound 
by a solemn obligation to administer it as it stands, and not to modify it so that it 
might accord with their own notions of justice. They had no more authority to do 
so than to repeal the law. The final proceedings of the court are inexplicable to the 
department. * * * Their finding on the charge declares him guilty, but their 
finding on the specification and the nominal punishment awarded, imply that thev 
considered him not guilty. The incongruous whole has the aspect of an unsuccessliil 
attempt at comoromise between those members of the court who believedthe accused 
guilty and others who believed him not guilty." G. O. 68, Dec. 6, 1865. 

It may be observed that the court thus criticised was presided over by Vice Admiral 
Farragut and had as members Rear Admirals Paulding, Davis, and Dahlgren. 

In a case where an officer was charged with " Culpable inefficiency in the performance 
of duty " and was acquitted by the court, the Secretary of the Navy, after a review of 
the evidence, disapproved the finding, saying, by inference, that the court had 
shielded the officer accused by unjustly condemning another officer, and that if upon 
the state of facts shown "no naval officer can be punished therefor, the responsibility 
for such impotent conclusion shall always rest solely upon officers composing courts- 
martial and not upon the Navy Department." C. M. O. 3, 1884. 

Where an officer was charged with "Neglect of duty" and acquitted by the court, 
the Secretarv of the Navy, after a discussion of the evidence, disapproved the finding. 
CM. 0.41,1888. 

Where an apprentice was found guilty of the charge of "Conduct to the prejudice 
of good order and discipline," and upon reconsideration by direction of the depart- 
ment the court adhered to the sentence awarded, the Secretary of the Navy disap- 
proved the proceedings, finding, and sentence, saying: " It is better that the accused 
should escape punishment than that a manifestly improper sentence should receive 
the approval of the department and thus become a precedent for the guidance of 
courts-martial in future cases." CM. 0. 102, 1893. 

Where an officer was charged with "Drunkenness on duty," the court sustained his 
plea in bar, and, after the record was returned to it for reconsideration, adhered to its 



CRITICISM OF COURTS-MARTIAL. 143 

former decision, the Secretary of the Navy disapproved the action of the court, saying: 
"It is difficult to understand the display of obstinacy or obtundity thus presented, 
inasmuch as the court thereby assumes to put its own interpretation of precedents and 
decisions originally established and rendered by the department above the inter- 
pretation placed thereon by the department itself. For the failure of justice which 
thereupon ensues, and the injury which the discipline of the service must necessarily 
suffer at the hands of those to whom it is entrusted, and by whom it should be most 
zealously guarded, the court is responsible." C. M. 0. 104, 1897. 

Where an officer was charged with "Absence from duty without leave " and " Scan- 
dalous conduct tending to the destruction of good morals" and found guilty of both 
charges and sentenced to be reprimanded by the Secretary of the Navy, the sentence 
was disapproved by the Secretary of the Navy, who said: " By the sentence awarded, 
the court not only disregards explicit provisions of law and regulations on the subject, 
but usurps the functions of the convening authority by practically exercising clem- 
ency, and, furthermore, in imposing so slight a punishment for a grave offense brings 
the discipline of the service into disrepute." C. M. 0. 132, 1897. 

"When an officer was charged with "Drunkenness on duty," and "Conduct unbe- 
coming an officer of the Navy," and was acquitted by the court, the proceedings, 
findings, and acquittal were disapproved by the Secretary of the Navy, who, after a 
review of the evidence, said: "In view of the foregoing the department is compelled to 
express its simple astonishment that any court of officers could be found, a majority 
of whom, at least, should exhibit such evidence of their incapacity or disregard of duty 
as to acquit the accused of a charge so thoroughly and completely proven. * * * In 
the opinion of the department such a result tends greatly to injure the discipline of the 
service and to impair all confidence in courts-martial, especially on the part of enlisted 
men, who can not help noting the contrast between such an indication of favoritism 
toward an officer and the severe accountability to which they are held under similar 
charges." C. M. O. 36, 1898. 

Where an officer was charged with "Absence from his duty and station without 
leave," "Disobedience of orders," and "Drunkenness," a commander in chief, as the 
convening authority, expressed the opinion that the sentence of the court was entirely 
inadequate to the nature of the offense, although he approved the sentence as the 
accused would otherwise go unpunished. (C. M. O. 30, 1885.) 

A commander in chief, under the same conditions, pronounced a sentence inade- 
quate, and approved it onlv because otherwise the accused would escape punishment 
altogether. C. M. O. 9, 1893. 

In the War Department like instances may be found. Some of such instances are 
cited by Winthrop in the note on page 731 of volume 1, to which reference is made. 
It appears there that by General Order 64, Department of the Ohio, 1864, a General of 
the Army ordered the members of a court to be reprimanded, and cautioned the 
Assistant Adjutant General of the department against putting any officer of this court 
on any important court-martial duty. 

Some additional cases may be cited. For example: Where an officer was acquitted 
of "Disobedience of orders," and "Neglect of duty," the Secretary of War, in disap- 
proving the findings, says: "The ruling made that the accused was not acting under 
orders is creditable neither to the court that made it nor to the officer who permitted 
such a defense to be presented. * * * It is not encouraging to find that a court- 
martial, composed of officers of the Army of experience, does not think proper even 
to censure an officer who, though without criminal intent, has conducted an impor- 
tant business matter intrusted to him in a manner which would not be tolerated bv a 
private employer." (War Department, General Court-martial Order No. 46, Oct. 
15,1883.) 

Where an officer serving with the Army in the Philippines was acquitted by court- 
martial of the charge made against him, the major general commanding, after review- 
ing the evidence, disapproved the acquittal, saying: "There has been a miscarriage 
of justice in this case. " (May 7, 1902.) 

Where an officer of the Ariny was charged with "Conduct unbecoming an o nicer 
and a gentleman" and by the court found "uot guilty, " but guilty of "Conduct to the 
prejudice of good order and discipline, ' ' and sentenced to suspension from rank , dut y , 
and pay for three years, the President of the United States returned the record t o I he 
court for reconsideration of the findings and sentence, saying: "Neither are believed 
to be commensurate with the offenses " found proved in the specifications. In return- 

50756°— 17 10 



144 CRITICISM OF COURTS-MARTIAL. 

ing it to the court he accompanied it with a communication of the Attorney General, 
in which the President expressed his concurrence. In that communication the follow- 
ing language is used: "I find it difficult to reconcile this conclusion with any recognized 
standard of either officerlike or gentlemanlike conduct. * * * The action of the 
court as a whole seems to involve a serious lowering of that high standard of honor 
which from the earliest days has been the pride and glory of our military service." 
[18 Op. Atty. Gen., 113, 117,' 118.] The court upon reconsideration adhered to its find- 
ing, but changed the sentence to suspension for one year and a reduction in rank. The 
President again returned the record to the court for a reconsideration of the sentence, 
which was incapable of execution. The court thereupon sentenced the accused to 
suspension from rank and duty for twelve years and forfeiture of one- half pay. The 
President approved the sentence, so that the proceedings should not be without 
results, and said: " It is difficult to understand how the court could be willing to have 
the officer tried retained as a pensioner upon the Army Register while it expressed its 
sense of his unfitness to perform the duties of his important office by the imposition 
of two different sentences." (War Department, General Court-martial Order No. 19, 
Feb. 24, 1885.) 

The validity of the final sentence in the above cited case was questioned in the 
courts upon the ground, among others, that the action of the President was unwar- 
ranted. The action, however, was sustained bv the Supreme Court. (Swaim v. 
United States, 165 United States, 553.) [See also 28 Ct. Cls. 173.] 

It thus appears in practice that the reviewing authority has disapproved findings 
of acquittal and condemned sentences as inadequate, criticized and censured courts- 
martial and directed that their members no longer serve in such positions. I am 
advised by the Judge Advocate General that such practice has been continuous, and 
that many instances of it can be found, and that hitherto no question has been raised 
that the practice was regular and lawful. 

The conclusion of the department, therefore, is that the commander in chief, as the 
convening and reviewing authority of the court-martial in question, was within the 
limits of his authority in criticizing the finding of "not guilty" upon the third charge 
and pronouncing the sentence inadequate and in his criticism and animadversion 
upon the court. 

It is not to be inferred from this decision that, although the power of censure by the 
reviewing authority of courts-martial is clearly shown to exist by an unbroken practice 
of many years, it should be indiscriminately exercised. It is to be kept in mind that 
members' of courts-martial must be independent in their action and are not subject to 
control. It is to be regretted that an occasion has arisen which, in the judgment of the 
reviewing authority, demanded so severe a censure as was inflicted in this case. 
Nevertheless, as the members of the courts must be the judges of the measure of their 
duty, so the reviewing authority must be the judge of the measure of his duty. While 
the exercise of the discretion of the reviewing authority is uncontrollable, there is a 
clear remedy for an abuse of it. If it should appear in any case that, in the exercise of 
his authority of reviewing the proceedings of courts-martial convened by him, a 
commander in chief had acted capriciously, cruelly, with evident lack of judgment, or 
from improper motives; in short, if he had shown himself unfit to be intrusted with 
the authority which the law attaches to his position, the department has the power to 
, withhold from him that authority in the future by recalling him from his station. It 
is ; however, considered that in this instance the convening authority has not shown 
himself unworthy of the continued confidence of the department. On the contrary, 
in view of the evidence before the court, without weighing too nicely the terms of his 
censure, it is believed that he was actuated by a high sense of duty and inspired by a 
regard for the honor and welfare of the service. 

I am invited by the Bureau of Navigation to publish an order concerning perform- 
ance of the duties of courts-martial. It seems to me that nothing more impressive can 
be said than to present the fact that the bureau charged with the immediate govern- 
ment and discipline of the personnel of the Navy has deliberately presented to the 
department such a request. 

The foregoing decision of the department will be communicated to the officers who 
have protested against the action of the convening authority in the case, and to the 
commander in chief of the Asiatic Squadron for the information of the officers belong- 
ing to the squadron under his command. File 7719-03, Sec. Navy, Nov. 18, 1903. 
36. Members of a summary court-martial appeal and protest against criticism 
of senior officer present — The right of the reviewing authority to censure members 
of a court-martial individually for the manner of performing duty was carefully con- 



CRITICISM OF T COURTS-MARTIAL. 145 

sidered and sustained by the Secretary of the Navy in a decision published to the 
service November 18, 1903 (see Criticism of Courts-Martial, 35), upon the protest 
of an officer who was a member of a general court-martial. In support of its con- 
clusion the department, in the case mentioned, cited precedents existing in both the 
Army and Navy, and held that direct strictures upon individuals are in some cases 
quite legitimate and can not be avoided, although in general the members of the court 
should themselves be brought to trial upon formal charges. (On appeal the depart- 
ment's decision was approved by the President, file 155-04.) 

The entire membership of a general court-martial has repeatedly been censured 
by the department for errors in the record. (See C. M. O. 14, 1913, 5; 27, 1913, 12.) 
Again, the department has commented on the fact that in violation of instructions 
contained in the Forms of Procedure the president of a general court-martial in an 
important case throughout the trial made rulings upon the admissibility of evidence 
and other questions raised by counsel without consulting the other members of the 
court, and that the errors so made were obvious and fully covered by elementary 
rules. G. C. M. Rec. 23553. 

In the present case, the inadequacy of the sentences imposed by the summary court- 
martial in question is so plainly apparent on its face as to render discussion with 
reference thereto unnecessary. 

The commanding officer is charged with the discipline of his command, and is pre- 
sumably more experienced than the officers under his jurisdiction. Nevertheless, 
when he convenes a court-martial for the trial of an offender, if he deems the punish- 
ment adjudged inadequate his power over it is limited to disapproval. He can not 
dictate what sentence shall be imposed, nor can he add to the punishment adjudged. 
But while he is without such power over the sentence, he is not without remedy 
against the members of the court if he considers them responsible for a miscarriage of 
justice. In such cases the members of the court themselves may be brought to trial 
or they may be individually censured for their action. In the case of general courts- 
martial the trial of the members under such circumstances would ordinarily be the 
only course open, for the reason that their oath binds them to secrecy both as to their 
own vote and the vote of each other, unless required to disclose same "before a court of 
justice in due course of law." As to summary courts-martial, it is not necessary that 
the members be brought to trial, as they are not bound by oath to secrecy and their 
vote may be officially ascertained without judicial proceedings. 

In this case the department held that the reviewing authority had full authority to 
censure the members of the summary court-martial for adjudging an inadequate sen- 
tence and to Dlace the censure on the reports on fitness of such officers. File 25675-9- 
10-11, Sec. Navy, Oct. 28, 1915. See also Oaths, 47; Reports on Fitness, 3. 

37. Members and president criticized— The Secretary of the Navy concurred in the 

opinion of the convening authority (fleet) relative to the inadequacy of the sentence 
adjudged in this case, and in accordance with the recommendation of the Bureau of 
Navigation so informed the president and members of the court by letter. C. M. O. 
6, 1916. See also Criticism of Courts-Martial, 35. 

38. Same — Where a court adjudged an inadequate sentence in the case of a warrant officer 

and twice refused in revision to make it adequate, the convening authority (fleet) 
remarked: "Attention having been twice called to the inadequacy of the sentence 
the court has entirely failed to realize its responsibilities to the naval service." The 
department concurred in these remarks, stating that the sentence was grossly inade- 
quate. "The department also feels that to permit this oincer to continue to lower 
the reputation of the commissioned personnel by his irresponsible and unofficerlike 
conduct is adverse to the interests of justice and discipline in the naval service, and 
that the action of the court in this case has resulted in a miscarriage of justice. A 
copy of the department's remarks in this case will be forwarded tothe commander 
in chief in order that he may refer it to the president and members of the court.' 



This officer pleaded guilty to "Drunkenness" and had twice before been found guilty 
by general courts -martial of offenses involving drunkenness. File 26262-2610. Sec 
Navy, July 21, 1916. See also C M. O. 12, 1895, 2; 34, 1916: Criticism of Courts 



Martial, 35, 

39. Miscarriage of justice. See Criticism of Courts-Martial, 16, 35. 

40. Misspelled words— In record of proceedings. C. M. O. 27, 1913. 11-12; 28, 1915. 

41. Names of members— And judge advocate published in Court-Martial Order. C. M 

0.38,1915,3. 



146 CRITICISM OF COURTS-MARTIAL. 

42. Nominal punishment. See Criticism of Courts-Martial, 35. 

43. Obstinate. C. M. 0. 104, 1897, 5-6. See also Criticism of Courts-Martial, 16, 19, 20, 

35, 48. 

44. Obtundity. C. M. O. 104, 1897, 5-6. See also Criticism of Courts-Martial, 35, 48. 

45. Outraging public opinion— The department declined to outrage public opinion and 

its own sense of justice, or to mislead the younger officers of the Navy, by approving 
a glaringly inadequate sentence. G. O. 58, June 29, 1865. See also Adequate Sen- 
tences, 15; Criticism of Courts-Martial, 35. 

46. Pardon— Courts-martial have not the power to pardon. See Adequate Sentences, 5; 

Pardons, 9. 

47. Pay, forfeiture of— Court-martial criticized for adjudging loss of pay in an officer's 

case. C. M. O. 48, 1915. See also Pay, 100. 

48. Plea in bar— It is difficult to understand the display of obstmacy or obtundity thus 

presented, inasmuch as the court thereby assumes to put its own interpretation of 
precedents and decisions, originally established and rendered by the department 
above the interpretation placed thereon by the department itself. For the failure of 
justice which thereupon ensues, and the injury which the discipline of the service must 
necessarily suffer at the hands of those to whom it is entrusted , and by whom it should 
be most zealously guarded, the court is responsible. The fact that an officer, pre- 
sumably guilty of a very serious offense, has, by the strained and illogical construction 
adopted by the court in this case, escaped punishment, while a grave matter, is of 
less consequence than the permanent injury which would result to the service should 
the department allow the action of this court to stand as a precedent, and sanction 
thus be placed upon the admission into naval jurisprudence of pleas in bar of trial of 
the character advanced in this instance. The action of the court in sustaining the plea 
in bar was accordingly disapproved. C. M. O. 104, 1897, 5-6. 

49. " Pretended punishment." See Criticism of Courts-Martial, 35 (p. 142). 

50. Public reprimand — Court-martial criticized for adjudging public reprimand. See 

Public Reprimand, 5, 6, 11. 

51. Record of proceedings— Errors in. See Criticism of Courts-Martial, 13, 28, 35, 40. 

52. Reflections— Convening authority may make. See Criticism of Courts-Martial, 

35, 36. 

53. Regulations — Courts-martial should uphold — The department considers it timely 

to advise courts-martial that neglect on the part of members of naval courts-martial 
to uphold the regulations governing the Navy is as grave a neglect of duty and as far- 
reaching in its injurious effect upon the service as neglect or violation of those regula- 
tions by officers in positions of responsibility. C. M. O. 43, 1906, 3. 

54. Repealing law. See Adequate Sentences, 6. 

55. Reprimanded for leniency— Letters were addressed to officers who constituted the 

court, by express direction of the President of the United States, calling attention to 
the fact that by their leniency in permitting the accused (officer) to remain in the 
service after committing offenses meriting dismissal they had, without benefiting him, 
prejudiced the best interests of the Navy, the officer having a second time brought 
scandal and disgrace upon the naval service. C. M. O. 47, 1906. Seealso file 3401-16. 

56. Rulings upon admissibility of evidence— President of general court-martial criti- 

cized. See Criticism of Courts-Martial, 36 (p. 145). 

57. Secretary of the Navy — May reprimand, censure, criticize, commend, etc. See 

Commendatory Letters, 2; Public Reprimand, 18; Reprimand, 10. Secretary 
of the Navy, 63. 

58. Sentence, inadequate. See Adequate Sentences; Criticism of Courts-Martial. 

59. Shielding accused. See Criticism of Courts-Martial, 35. 

60. Stricture, emphatic. See Criticism of Courts- Martial, 35. 

61. Stubborn. See Criticism of Courts-Martial, 35, 43. 

62. Summary courts-martial— Senior member of a summary court-martial was criti- 

cized by name by reviewing authority and printed in Court-Martial Order. C. M. O. 
5, 1912, 6. 

63. Same — Members censured and censure entered on reports on fitness. See Criticism of 

Courts-Martial, 36; Reports on Fitness, 3. 

64. Suspension from duty— Court-martial criticized for adjudging. See Suspension 

from Duty, 4, 5, 9-13. 

65. Trial— At unusual hour. See Court, 171; Criticism of Courts- Martial, 66. 

66. "Undue haste" in conducting a trial— The department criticized a court for irregu- 

larities in record and for meeting at unusual hours. "The present case strikingly 
exemplifies the consequences resulting from attempts to conduct a trial by general 
court-martial in undue haste and at unusual hours." C. M. O. 27, 1913, 11. See 
also Court, 171. 



CUSTODY. 147 

CROSS-EXAMINATION. 

1. Accused — As a witness. See Witnesses, 1-11. 

2. Same — Must be afforded his right to cross-examine witnesses against him. See Accused, 

28; Constitutional Rights of Accused, 16; Witnesses, 2. 

CROSS-INTERROGATORIES. 

1. Depositions^ C. M. 0. 47, 1910, 9; 5, 1916, 6. See also Depositions, 3. 

CRUELTY. 

1. Commanding officer — Toward crew. See Commanding Officers, 4, 15. 

CRUSHED BY TURRET. See Line of Duty and Misconduct Construed, 17. 

CULPABLE. 

1. Definition— ''Culpable " means "deserving of blame or censure." It states a mere 
conclusion of law, and is not necessarily essential to the validity of a charge or specifi- 
cation, if improperly excepted by court in its finding. C. M. O. 4, 1914, 1, 3. 

CULPABLE INEFFICIENCY IN THE PERFORMANCE OF DUTY. 

1. Defined and distinguished— From "Neglect of duty." C. M. O. 129, 1898/6. 

2. Degree — A higher degree than the offense " Negligence in performance of duty." See 

Guilty in a Less Degree than Charged, 12. 

3. Same— Not a lesser degree of "Cowardly and inhuman conduct to the scandal and dis- 

grace of the naval service." C. M. O. 37, 1909, 7. 

4. Finding — "Culpably inefficient in the performance of duty," in specification, found 

"not proved." C. M. O. 9, 1897. 

5. Gravamen, is not— "Culpable" not gravamen of the charge of "Culpable inefficiency 

in the performance of duty " but immaterial allegation embodying a mere conclusion 
of law — "What is useful is not vitiated by the useless." 

Accordingly, when the facts alleged and found proved show that conduct of accused 
is "deserving of blame or censure," a charge and specification are good and will sup- 
port a sentence, although court erroneously finds the word "culpable" not proved. 
C. M. O. 4, 1914, 1, 6. See also C. M. O. 21, 1885; 40, 1891; 56, 1898; 70, 1898; 129, 1898, 
6; 89, 1901; 19, 1905, 1; 5, 1906, 1; File 26262-1797. 

6. Officers— Charged with. C. M. O. 9, 1897; 20, 1909; 32, 1909; 52, 1910; 12, 1910; 22, 1910; 

27, 1910; 11, 1911; 13, 1911; 24, 1911; 27, 1911; 4, 1913, 15; 3, 1914; 4, 1914; 3, 1915; 7, 
1915; 7, 1916; 8, 1916; 43, 1916: 7, 1917. 

7. Warrant officer (commissioned)— Charged with. C. M. 0. 14, 1912. 

CULPABLE INEFFICIENCY IN THE PERFORMANCE OF DUTY IN VIOLA- 
TION OF THE NINTH CLAUSE OF THE EIGHTH ARTICLE OF THE 

ARTICLES FOR THE GOVERNMENT OF THE NAVY. 

1. Officer— Charged with. C. M. O. 23, 1913. 

CULPABLE INEFFICIENCY IN THE DISCHARGE OF DUTY. 

1. Officer— Charged with. G. O. 47, Jan. 27, 1865. 

CULPABLE NEGLIGENCE IN THE PERFORMANCE OF DUTY. 

1. Officer— Charged with. C. M. O. 19, 1916. 

CULPABLE NEGLIGENCE AND INEFFICIENCY IN THE PERFORMANCE 
OF DUTY. 

1. Chief pay clerk— Charged with. C. M. O. 28, 1916. 

2. Guilty in a less degree than charged— Guilty of "Neglect of duty." C. M. O. 8, 

1915, 2. 

3. Officers— Charged with. C. M. O. 29, 1910; 6, 1911; 3, 1912: 7, 1913: 2S, 1914: 3, 1915; 4, 

1915: 8, 1915; 9, 1915; 37, 1915; 38, 1915; 7, 1916: S, 1916: 25, 1916; 26, 1916; 31, 1916. 

4. Warrant officer (commissioned)— Charged with. C. M. O. 36, 1915. 

CURRENT. See Navigation, 21-23. 

CUSTODY. 

1. Definition of. See Wales v. Whitney, 114 U. S. 564; General Order No. 121, Sept. 
17, 1914, 11. 



148 DE FACTO. 

CUSTOMS. 

1. Appointing power— Can not be restricted by a custom. See Appointing Power, 1. 

2. " Conscience fund " — It is possible that the courts would give legal effect to the custom 

of the Treasury Department receiving funds, such custom having continued many 
years, and not being in conflict with any express provision of law. See Conscience 
Fund. 

3. Crime— There can be no such thing as a lawful custom to commit a crime. C. M. 0. 128, 

1905, 5. See also Evidence, 25. 

4. Evidence of. See Collision, 8, 9. 

5. Force of law— Established custom may have force of law. C. M. O. 29, 1915, 7. See 

also Commissions, 12. 

6. Power of President— To change established customs. See File 3973-107, Feb. 16, 1915. 

See also 30 Op. Atty. Gen. 234. 

7. Same— To appoint officers can not be restricted by custom. See Appointing Power, 1. 

8. Promotion— Under the laws, customs, and usages of the naval service, no officer who is 

unable to establish his fitness for promotion can be retained indefinitely in a fixed 
position in the Navy List, delaying promotion all along the line. File 26260-1592, 
J: A. G. , June 29, 1911, p. 6. See also Promotion, 206. 

9. Regulation— There can be no such thing as a legal custom to disregard a valid regulation. 

See Regulations, Navy, 26. 

CUSTOMS OF THE SERVICE. 

1. Clemency extended — In view of the unanimous recommendation of the members of the 

court that clemency be shown the accused, in consideration of his evident sincerity, 
of his ignorance of the customs of the service, etc. C. M. O. 50, 1901. 

2. Exemption of S3 in sentences— The regulations permitting an exception of S3 per 

month for prison expenses, and the customs of the service provide that this exception is 
for necessary prison expenses, and this should be set forth in the sentence. CM. O. 
42, 1909, 5. See also Exemptions in Sentences, 4. 

3. Officer — The convening authority in his remarks stated that the accused (boatswain) 

was thoroughly conversant with the customs of the service, etc. C. M. 0. 38, 1914, 1-2. 

4. Precedents — Customs of service can only be taken as precedents to follow, when in- 

trinsically proper in themselves and supplementary of the written law and regula- 
tions, on points on which the latter are silent. 

A custom of the service can not be created by isolated or occasional instances, or by 
the practice of a particular command or commander, but must be a usage of the 
service at large or of commanders in general. An illegal or unauthorized practice, 
however frequent or long continued, can not abrogate a plain requirement of the 
regulations, and the following of an unauthorized and pernicious practice constitutes 
no good defense for any neglect on the part of the accused. C. M. O. 43, 1906, 3. 

5. Specifications— Of naval courts-martial must on their face allege facts which constitute 

a violation of some law, regulation, or custom of the service,^ etc. C. M. O. 33, 1914, 6. 

6. Usages— Customs and usages of the service, whether originating in tradition or in 



(See 
1913, p. 4. See also C. M. O. 18, 1S97, 3. 

CUSTOMS OF WAR. See Constitutional Rights of Accused, 4. 

DANGER. 

1. Precautionary orders— By commanding officer. See Collision, 19. 

"DAT IN COURT." 

1. Department— In its action on an officer's general court-martial case stated that the 
accused "has had his ' day in court ' and has failed to make any defense which is legally 
sufficient to the charge."' C. M. O. 39, 1913, 10. Sec also Embezzlement, 25 (p. 209). 

DE FACTO. See also Words and Phrases. 

1. Commander in chief. C. M. O. 14, 1910, 17. See also Convening Authority, 30. 

2. Enlisted man— A minor enlisted and was convicted of " Desertion. " Department held 

that he was not onlv a de facto, but dejure enlisted man. (See In re Morrisev, 137 U. S. 
157.) C. M. O. 217, 1902, 4. See also Fraudulent Enlistment, 22. 

3. Officer. See Pay, 33. 

4. Pay. See Pay, 33. 



DEATH GRATUITY. 149 

DE JURE. See also Words and Phrases. 
1. Enlisted man. See De Facto,, 2. 

DEAD RECKONING. Sec also Navigation, 27, 28, 31. 

I. Navigator and commanding officer— Failing to allow a prudent factor of safety for 

errors in "dead reckoning" and for the effects of the current. Vessel stranded on 
shoal and both officers tried by general court-martial. C. M. O. 2, 1915; 3, 1915. 

DEATH. 

1. Boards of inquests. See Boards of Inquests. 
2,. Certificates. See Medical Records, 5. 

3. Civilian coal handler— Court of inquiry records, where sent. Ct. Inq. Rec. 6196. 

4. Commissions— Officer died after he was nominated for promotion but prior to con- 

firmation by the Senate. File 28687-4:4, J. A. G., Oct. 30, 1916. 

5. Gratuity, death. See Death Gratuity. 

6. Inquests. See Boards of Inquests; Inquests. 

7. Members of courts-martial— Before signing records. See Members of Courts- 

Martial, 24. 

8. Officers— Supposed death of. See Desertion, 89-91. 

9. Presumption of death— At common law was 7 years. See Common Law, 7. 

10. Same — Presumption was warranted that a naval officer was lost at sea. The depart- 
ment, therefore, assumed and decided that, for official purposes and as a conclusion 
of fact, the officer died on August 16, 1915. File 25809-205:40, Sec. Navv, Oct 11 
1915. ' 

II. Sodomy — Common law punishment for sodomy was death. See Common Law, 10 

Sodomy, 15. 

DEATH GRATUITY. 

1. Accounting officers' jurisdiction— Accounting officers have no jurisdiction to con- 

sider a claim for payment of death gratuity until the Paymaster General has acted 
upon and allowed same; and when a claim is allowed by the Paymaster General, this 
establishes claimant's right and he is entitled to demand payment without being 
required to establish his claim anew to the satisfaction of the accounting officers 
File 26543-66, Sept. 8, 1911. Compare 22 Comp. Dec, 532, File 26543-148. 

2. Acting assistant surgeons. See Acting Assistant Surgeons, 3. 

3. Administrator— Of beneficiary. See Death Gratuity, 13. 

4. Appeals— The beneficiary of a death gratuity may appeal to the Secretary of the Navy 

from the action of the Paymaster General of the Navy in refusing to pay the gratuity. 
File 26543-66, J. A. G., Sept. 8, 1911, p. 16. See also Death Gratuity, 6, 23. 

5. Same— To Congress— The law (act Aug. 22, 1912, 37 Stat., 329; Navy Regulations, 1913, 

R-4551 (1) prevents the payment of death gratuity to the mother of a deceased enlisted 
man unless she has been "previously designated" by him. (See C. M. O. 31, 1915, 
pp. 5-6.) Accordingly where the deceased left no widow or children and the mother 
has not been "previously designated "■ her only redress "lies in an appeal to Congress " 
(See File 7657-303:3; 26256-275.) File 26543-137:4, Sec. Navy, Nov." 20, 1015; O.^M 6 
42,1915,9-10. 

6. Auditor— Authority of auditor to order payment made— The party to whom payment 

has not been made by a disbursing officer may present his demand, or claim, to such 
disbursing officer's superior who, if he deems the claim to be a just one, may require 
the subordinate to make the payment. But in such a case the paying officer is no 
longer responsible financially; the order of his superior has relieved him from danger 
of checkage, and the disallowance, if any, would fall upon the superior. In such a 
case, it is not the accounting officers who have power to order payment. File 26543-66 
J. A. G., Sept. 8, 1911, p. 6. Seealso Death Gratuity, 23. 

7. Beneficial in its nature— The death-gratuity law is beneficial in its nature, and should 

be construed very liberally as to evidence required; otherwise the intention of Con- 
gress, which was plainly to afford immediate relief to dependent relatives upon the 
death of an officer or enlisted man, would be defeated. File 2o">43-S7:2, Sec Naw 
Apr. 28, 1913, p. 5. See also File 26254-1930; Death GRATUITY, 25. * 

8. Beneficiary slips— Form approved by the department. File 2o:>43-S7:2, Sec Naw 

Apr. 28, 1913. ' ' ' 

9. Brother— May be designated as a beneficiary, if a "dependent relative" as the hene- 

ficiarv who 'is to receive the gratuity in case the designor should not be survived bv a 
widow or child. File 26543-91, J. A. G., Jan. 22, 1913. 



150 DEATH GRATUITY. 

10. Check— Cashing of by administrator of beneficiary. See Death Gratuity, 13. 

11. Commandant's clerks— The act of May 13, 1909 (35 Stat. 128) does not apply to com- 

mandant's clerks, in connection with death gratuities. File 5460-31, Sec. Navy. 

12. Common-law wife— As beneficiary— The following rule is adopted: "Where parties 

live together ostensibly as man and wife, demeaning themselves toward each other 
as such, and are received into society and treated by their friends and relations as 
having and being entitled to that status, the law will, in favor of morality and de- 
cency, presume that they have been legally married." (Travers v. Reinhard, 205 
U. S. 347.) File 26254-1936, J. A. G., Jan. 29, 1916. 

13. Death of beneficiary before payment is made— The law (act of Aug. 22, 1912, 37 

Stat. 329; Navy Regulations, 1913, R-4551 (1) ) provides for the payment of death 
gratuity in the case of any officer or enlisted man dying in the sen-ice from causes not 
the result of his own misconduct, 1st, to the widow; 2d, if no widow, to the children; 
and 3d, if no children, "to any other dependent relative of such officer or enlisted man 
previously designated by him." Held, that where deceased was not survived by a 
widow or child and had "previously designated" only one "dependent relative" (his 
mother) , who died after the death of deceased, but prior to receipt of the death-gratuity 
check, the proper legal representatives of deceased's mother may cash the check made 
to her order. (See Case of George B. Phillips, administrator of the estate of Jacob 
Botner, 49 Ct. Cls. 703, No. 31887, overruling Compt. Dec, Feb. 23, 1912, in same case; 
File 26266-325; File 26280-49.) File 26543-140, Sec. Navy, Sept. 13, 1915; G. M. O. 31, 
1915, 5-6. See also File 26543-150, J. A. G., Mar. 21, 1916. 

14. "Dependent relative"— Definition of. See Death Gratuity, 26. 

" When the officer or man designates a dependent relative the fact that he or she is 
designated as such should be given great weight, as none knows better the depend- 
ency of the relative than the person making the designation. (Comp. Dec., Jan. 3, 
1912, File 26543-87:2.)" File 26443-S7:2, Sec. Navy, April 28, 1913, p. 1. 

While the mere designation of a dependent relative in the beneficiary slip would 
hardly be sufficient evidence of itself to authorize payment to such designated bene- 
ficiary, the department believes that when the beneficiary slip is subscribed to under 
oath in due form by the officer or enlisted man making the designation, with a brief 
statement of the facts upon which the dependency is predicated, this may properly 
be accepted, in the absence of any indication to the contrary, as evidence of depend- 
ency at the time the designation is made. When, in addition to this evidence, there 
is submitted with the claim for payment an affidavit made by the designated bene- 
ficiary, attested by witnesses and accompanied by any available evidence showing 
the dependency to have continued until the death of the person making the designa- 
tion, this should in general constitute sufficient basis for making payment to such 
designated beneficiary so far as concerns the question of dependency. File 26543-87:2, 
Sec. Navy, April 28, 1913, pp. 1-2. 

15. Minor— A minor who enlists in the naval service is competent to designate a bene- 

ficiary, and the amount should be paid in accordance with such designation. File 
26543-38. See also File 26543-33, Sec. Navy, June 2, 1909; 26543-33, Sec. Navy, Dec. 15, 
1909. ->> > 

16. Same— Minor beneficiary. See File 26543-33, Sec. Navy, June 22, 1909, and Dec. 15, 

1909. * 

17. Misconduct— Effect upon granting of death gratuity. See Death Gratuity, 21. 

' 18. Misnamed— Payment of the death gratuity may be paid to the beneficiary, even 
though the beneficiary was misnamed in the beneficiary slip, provided, if from all the 
facts and evidence available, the beneficiary intended to be named can be definitely 
ascertained. File 26543-48, J. A. G., Oct. 10, 1910. 

19. Mother— Designated as beneficiary. See Death Gratuity, 5, 13. 

20. No dependent relative — Where deceased left no widow or child and designated his 

dependent relative as "none," the department held that "payment can not be made 
even though he be survived by a dependent relative." File 26543, Sec. Navy, Oct. 22, 
1914. 

21. Paymaster General shall cause to be paid— Immediately upon official notification 

of the death, from wounds or disease not the result of his own misconduct, of any 
officer or enlisted man on the active list of the Navy and Marine Corps, the Paymaster 
General of the Navy shall cause to be paid to the widow, and, if no widow, to the 
children, and, if there be no children, to any other dependent relative of such officer 
or enlisted man previously designated by him, an amount equal to six months' pay 
at the rate received by such officer or enlisted man at the date of his death, less seventy- 
five dollars in the case of an officer and thirty-five dollars in the case-of an enlisted 



DEATH GRATUITY. 151 

man, to defray expenses of interment, and the residue , if any, of the amount reserved 
shall be paid subsequently to the designated person. (Act of Aug. 22, 1912, 37 Stat. 
329.) (R-4551.) See Death Gratuity, 22, 23. 

22. Paymaster General's decision conclusive — In death gratuity cases, when the right 

of a beneficiary has been established to the satisfaction of the Paymaster General of the 
Navy, and he has authorized payment by the proper disbursing officer of the Marine 
Corps, such payment will be made by said officer "immediately " as required by law, 
unless the authorization is for any reason revoked by the Paymaster General of the 
Navy before payment can be accomplished. File 26543-148: 5, Sec. Navy, May 29, 
1916; C. M. 0. 16, 1916. See also File 26543-66, J. A. G., Sept. 8, 1911; 26543-87: 3, Sec. 
Navy, May 8, 1913; 26543-104, Sec. Navy, Aug. 22, 1913. 

23. Same— Where Congress by act of May 13, 1908 (35 Stat. 128), provided that, upon the 

existence of certain facts, the Paymaster General of the Navy shall cause to be paid a 
gratuity to the beneficiary of a deceased officer or enlisted man of the Navy or Marine 
Corps, and that the Secretary of the Navy shall establish regulations requiring each 
officer and enlisted man to designate the proper person to whom the amount should 
be paid. Held, The decision of the Paymaster General, that the facts necessary to 
authorize payment did not exist in a given case, was necessarily conclusive of the 
question, except for the right of the claimant to appeal from the action of the Paymas- 
ter General to the Secretary of the Navy; and that the Auditor for the Navy Depart- 
ment did not have jurisdiction to review the decision of the Paymaster General. File 
26543-66, Sept. 8, 9, 1911. Compare 22 Comp. Dec. 532; File 26543-148. See also Death 
Gratuity, 6. 

24. Presumption of death— Where a submarine, known to contain certain persons in the 

naval service, sinks and remains submerged about 2| months, the department decided 
that said persons were dead, and that the necessary'steps could be taken without fur- 
ther delay to pay the death gratuity authorized by law to their beneficiaries; that it 
was not deemed advisable to fix the definite date on which such persons may be 
regarded as officially dead, pending additional evidence which might be available 
when the submarine is brought to the surface. File 26453-137, Sec. Navy, June 17, 
1915; C. M. O. 22, 1915, 7. 

25. Purpose of the death gratuity law— In connection with the purpose of this law, see 

27 Op. Atty. Gen., 346, 354, with reference to the Government personal injury act: 
"The purpose of the law was not to set in motion an interminable series of technical 
inquiries such as would puzzle the minds of learned and profound judges, but to pro- 
vide immediate pecuniary relief * * * taking the language of that section in its 
obvious sense and as intended to be addressed to administrative officers," etc. 27 Op. 
Atty. Gen., 346, 354, quoted in File 26254-1936, J. A. G., Jan. 29, 1916, p. 6. See also 
Death Gratuity, 7. 

"Should the Paymaster General be required in every case to make a thorough 
investigation for the purpose of determining whether the marriage of claimants for 
death gratuity complied with all legal requirements in the jurisdiction in which such 
marriages were contracted, it is possible that some legal defect might occasionally 
be discovered and payment accordingly resisted. On the other hand, it is certain 
that such a system would defeat the principal purpose of the law in a very large pro- 
portion of cases by requiring innocent claimants to wait for unwarranted^ y long peri- 
ods to receive the money which Congress intended for their immediate relief. Indeed 
the length of time required to investigate such claim in this way would be so great 
that the accumulated claims and the complicated questions which they involved 
might soon prove too numerous to handle at all with the present equipment, and the 
law would thus in effect be nullified." File 26254-1936, J. A. G.. Jan. 29. 1916, p. 7. 

"Congress could not have contemplated any exhaustive investigatigation by the 
Navy Department of these questions, and it did not provide the means necessarv to 
undertake such a burden." File 26254-1936, p. 6. 

There are "other classes of cases in which the Secretary of the Navy is forced to 
decide questions for administrative purposes without delving into all the compli- 
cated questions of law and fact which a court equipped with the necessary machinery 
would have to consider and investigate. before making a judicial decision which would 
be controlling for all purposes." (Sec 28 Op. Attv. Gen. 80; 29 Op. Atty. Gen. 14.) 
File 26254-1936, J. A. G., Jan. 29, 1916, p. 6. 

With reference to the act of May 13, 1908, it was stated: "This legislation would 
appear to have been intended to confer a gratuity upon t he members of t he immediate 
family of the officer or enlisted man, or upon some other person wno had boon bene- 
fited by his salary, which was suddenly cut off by his death.. * * * The benefits 



152 DEATH GRATUITY. 

conferred by this clause are not included in the term 'pay and allowances,' but the 
payment provided for is simply a gratuity— more in the nature of a pension— payable 
directly to the person designated and in which the officer or enlisted man himself has 
no property rights." File 26254-7S, J. A. G., July 24, 1908, p. 3. 

" The expressed intent of the law being that payment should be made immedi- 
ately to the person who has been regularly designated by the man himself under 
oath * * * and whose source of income has suddenly been stopped by the 
death of such man while in the naval service from causes not the result of miscon- 
duct." File 26254-1936, Sec. Navy, Jan. 29, 1916. 

26. "Relative" — Meaning of— In my opinion the word " relative" as used in the actof 

August 22, 1912 (37 Stat. 329), concerning the payment of gratuity in certain cases, 
upon the death of an officer or enlisted man in the naval service, is to be interpreted 
as meaning relative by consanguinity only and not relative by affinity. Such is prac- 
tically the unanimous decisions of the courts in denning the word "relative" as used 
in statutes and wills. File 26543-86, J. A. G., Oct. 19, 1912. See also State v. Tucker, 
26Ann.Cas. 100, 93 N.E. 3,174 Ind. 715: Compt.Dec. Apr. 10, 1913; File 26543-92: 1; 
26543-87:5, Sec. Navy, Sept. 2, 1913; 26543-87:4, J. A. G., Aug. 22, 1913. See also 
Death Gratuity, 14. 

27. Retired officers. See Retirement op officers, 20. 

28. Seal— If the officer before whom the beneficiary slip is subscribed and sworn to has no 

official seal, he is not required to affix a seal to the beneficiary slip. File 26543-87: 4, 
J. A. G., Aug. 22, 1913. 

29. Truth of statements in beneficiary slip— In general the oath of an officer or enlisted 

man in support of the statements made in the beneficiary slip should be accepted, in 
the absence of any indication of the contrary, as sufficient evidence that the facts as 
stated in the beneficiary slip were true at the time the beneficiary slip was signed. It 
would be altogether impracticable for the department to investigate in every case 
whether, for example, the person making the designation was legally married or 
whether' the children are legitimate. These questions would involve, in the first 
place, the ascertainment of the status of the marriage contract, which in general 
furnishes the " proper law" to determine the capacity of the parties to marry, the 
formalities of a valid marriage, etc. In the next place it would be necessary to ascer- 
tain what were the laws and decisions in the jurisdictions which govern the various 
questions involved in the different cases. If one jparty had been previously divorced, 
further complications might arise as to the validity of the divorce and its effect upon 
the capacity of the party to remarry. There is no uniformity in the laws of the differ- 
ent States as to these questions, which are often in themselves very complicated, have 
formed the subject of numerous legal treatises, and upon which the courts of the 
United States and of the differeut States are not always in accord. In some jurisdic- 
tions common-law marriages are recognized, while in others certain formalities are 
essentially prerequisite to the existence of the marriage status. So, also, in some juris- 
dictions the law would recognize children as legitimate under circumstances which 
would make such children illegitimate if the laws of other jurisdictions were to govern. 
Congress could not have contemplated any exhaustive investigation of these questions 
and it did not provide the means necessary to undertake such a burden. File 26543- 
87:2, Sec. Navy, April 28. 1913, pp. 2-3. 

30. Widow or children— The law specifically provides for making payment to the widow 

or children of deceased officers and enlisted men. In such cases payment is made 
without reference of dependency, and whether the widow or children had been previ- 
ously designated in a beneficiary slip or not. However, with reference to other rela- 
tives, designation must be specifically made by the officer or enlisted man and evidence 
must be furnished of dependency of such relatives at the time of death of the person 
making the designation. File 26543-87:5, Sec. Navy, Sept. 2, 1913. 

DEBATING SCHOOL. 

1. Military command— Not to be turned into a debating school upon the receipt of orders. 
See Orders, 39. 

DEBAUCHES. C. M. O. 146, 1896, 2; 132, 1897, 1. See also Drunkenness, 16, 19, 76. 

DEBTS. 

1. Collecting agency—" The department must not be converted into a collecting agency, 
but it will not fail to take note of such disgraceful practices and to bring those who 
commit them to speedy and condign punishment. C. M. O. 36, 1881, 3. See also 
Debts, 16; Pay, 71. 



DEBTS. 153 

"The department does not intend to act as an agency for the collection of debts, 
hut it does intend to enforce the observance of the provisions of the Navy Regulations 
and to see, particularly, that each and every officer conducts his affairs, both public 
and private, in a manner becoming an officer and a gentleman." File 26251-12117 
(G. C. M. Rec. 32614), p. 4, of charges and specifications. 

"Executive departments are not permitted to lend their aid to the collection of pri- 
vate claims against persons in their service. In the Navy, however, where a member 
of the personnel by failing to pay debts or failing to comply with a court's order to 
'pay to his wife and minor child certain moneys as alimony/ which conduct brings 
scandal and disgrace upon the naval service, he may under certain circumstances be 
subjected to appropriate disciplinary proceedings upon evidence sufficiently estab- 
lishing the facts." File 26524-275 : 5, J. A. G. , Aug. 8, 1916. 

2. Conduct unbecoming an officer and a gentleman— Failure to pay debts charge- 

able under. See Debts, 12. 

3. Same— Failure to discharge debts constitutes the offense of "conduct unbecoming an 

officer and a gentleman. " (Fletcher v. IT. S., 26 Ct. Cls. 541, 542.) 

4. Dismissal — Commissioned warrant officer tried by general court-martial and dismissed 

for failure to pay debts after officially promising to pay same. C. M. O. 2, 1916. 

5. Same— Commissioned officer tried by general court-martial and dismissed. See 

Debts, 21. 

6. Enlisted man— Officer in debt to. C. M. O. 48, 1910. 

7. Same— rlt is not regarded as good economy to retain an enlisted man in the naval service 

who has been sentenced to bad-conduct discharge and who is in debt, merely in order 
that he may be able to earn sufficient money to cancel his indebtedness. File 9770-01, 
J. A. G. See also File 1245-01; 3015-04; 9770-01; 26251-4260: 3; 26251-4260: 3. 

8. Same — Whether indebtedness is an offense or not. See File 16670-14, J. A. G., 

April 20, 1912. 

9. Failure to satisfy — The failure to satisfy debts has been repeatedly held by the depart- 

ment to be "scandalous conduct." C. M. O. 12, 1899, 4; 13, 1899, 2; 78, 1905. See 
also Debts, 24. 

10. Same — An indifference on the part of an officer to his pecuniary obligations of so 

marked and inexcusable a character as to induce repeated just complaints to his com- 
manding officer or the Secretary of the Navy by his creditors, and to bring discredit 
and scandal upon the military service, held to constitute an offense. C. M. 0. 16, 1916, 
1-2. 

11. Habit of neglecting to pay debts— Meets with the strong disapproval of the depart- 

ment and can not be permitted to become general. "The present instance shows a 
carelessness and lack of foresight in financial matters that are unworthy of an officer, 
and the reasons given for the nonpayment of these debts only serve to accentuate 
these faults on the part of the accused." C. M. 0. 98, 1905, 1. 

12. Nonpayment of— Charged under "conduct unbecoming an officer and a gentleman." 

C. M. O. 23, 1881; 5, 1909; 16, 1909; 15, 1915; 2, 1916; 12, 1916; File 26251-12117, Sept. 
1916. 

13. Officers — Debt claims against officers must be handled by Bureau of Navigation and 

Major General Commandant of Marine Corps. See File 7731-03; 10034-04. 

14. Same — Failing to discharge his indebtedness to an enlisted man. C. M. O. 48, 1910. 

15. Same — Officers serving afloat shall before leaving port pay, or provide for paying any 

debts they may have incurred. No officer shall at any time or place contract debts 
without a reasonable expectation of being able to discharge them. 

It is enjoined upon all officers that failure to discharge their j ust indebtedness brings 
discredit not only upon themselves but upon the naval service. (R-1508. ) File 26260- 
1392, J. A. G., June 29, 1911, p. 11. 

16. Same— "There are, undoubtedly, instances where officers find themselves hampered 

by pecuniary embarrassments from which they can not, without difficulty, at once 
extricate themselves. In such cases it becomes proper that they should practice a 
rigid economy, and so gradually pay their debts. 

"But when an officer has taken advantage of the circumstances that he belongs to 
the naval service of the Nation to establish a credit among tradesmen and merchants, 
he owes it to that service, as well as to his own reputation and to common honesty, 
that he should see his way clear to meet within a reasonable time, the obligation he 
incurs. If in a spirit of recklessness, he makes use of his position to live beyond his 
means, and runs in debt in face of a certainty or the strong probability that be will be 
unable to meet his engagements; if he takes advantage of the immunity with which 
the law protects his pay from seizure in order to defeat his honest creditors, such 



154 DEBTS. 

conduct is dishonorable and dishonest, unbecoming an officer and a gentleman, and 
calculated to bring scandal and disgrace upon the service. 

"Whilst it is in the near borderland of the crime of common swindling at law, it is 
undoubtedly amenable to punishment under the rules and practices governing the 
Navy. 

"The department must not be converted into a collecting agency, but it will not fail 
to take note of such disgraceful practices and to bring those who commit them to 
speedy and condign punishment." C. M. O. 36, 1881, 3. 

" While officers of the Navy and Marine Corps who do not pay their debts are the 
exception rather than the rule, the delinquency of a few officers may tend to bring the 
service into disrepute, as it is the disposition of tradesmen to give credit to officers upon 
the strength of their official positions merely, and although when brought to book the 
delinquents may pay their debts this does hot wipe out the stigma their conduct has 
placed on the service." File 9S3S-03, J. A. G., Nov. 2-, 1903, p. 7. 

17. Orders to pay — An officer can not be ordered to pay his debts, but he can be tried for 

faik re to pay them. 

The department in practice unhesitatingly orders the trial of an officer for ''conduct 
unbecoming an officer and a gentleman," growing out of nonpayment of debts, the 
validity of which is conceded by him or established by the judgment of a civil court, 
where the attending circumstances are such as to constitute the military offense named. 
File 26251-9522 : 22. 

18. Same — An order issued by the Secretary of the Navy directing an officer (or enlisted 

man) to pay a private debt would not be a "lawful" order for the disobedience of 
which he could be punished under the Articles for the Government of the Navy. The 
department, therefore, has no legal right to compel officers of the naval service to pay 
private debts. 

Should the debt be claimed as a result of services of an attorney in procuring legisla- 
tion such would be void as against public policv which makes all contracts based upon 
"lobbving," void ab initio. File 17789-12:1, J. A. G., Feb. 25, 1910, overruling. 
File 26287-733. 

The nonpayment of a debt or debts in general is not of itself an offense and can not 
subject the debtor to punishment either in civil or military life. Such disregard or 
neglect of one's moral obligations does, however, gradually become an offense under 
military law. as the continual and persistent refusal to pay a certain undisputed claim, 
or the repeated refusal to pay numerous undisputed claims, becomes notorious and 
thereby brings discredit upon the delinquent debtor within the service or tends to 
subject the naval service to reproach from those without. Held: That an order by a 
commanding officer to an enlisted man under his command to settle a just debt is 
not a lawful order, even when given at the time the claim was undisputed, and there- 
fore the proceedings of the summary court-martial were disapproved. File 26287-733, 
Sec. Navy, Feb. 28, 1911. 

An order issued by the Secretary of the Navy directing an officer to pay a private 
debt would not be a "lawful" order, for the disobedience of which he could be pun- 
ished under the Articles for the Government of the Navy. Moreover, if such an order 
could be enforced it would constitute a taking of property without due process of law, 
as every person who questions the validity of a claim against him is entitled to have 
the matter judicially determined, with a full opportunitv to urge any defense he might 
be able to make. File 17759-12: 1, J. A. G., Feb. 25, 1910, quoted approvingly by the 
Secretary of the Navy in File 262S7-733, Sec. Navy, Feb. 28, 1911. 

The Government can not properly act as collector of private indebtedness due from 
officers or enlisted men of the naval sen-ice. In such cases resort should be had to 
civil courts. Where, however, the question becomes one of conduct unbecoming an 
officer and a gentleman on 1 he part of an officer or of conduct to the prejudice of good 
order and discipline on the part of either an officer or an enlisted man, action may 
be taken by the Navy Department on these questions onlv. File 262^7-733, Sec. 
Navv, Feb. 28, 1911. But see File 26251-12117; 26251-12462, Oct., 1916; G. C. M. Rec. 
32614. 

19. Payment of— Can not be enforced by the department. See Claims, 5; Debts, 17, 18. 

20. Payment before trial— As grounds for clemency. See Debts, 23. 

21. Pledge to pay debts— An officer failing to keep a pledge made to the department to 

pay a certain amount each month to his creditors, was tried by general court- 
martial under the charge of "Scandalous conduct tending to the destruction of good 
morals, in violation of the first clause of the eighth article of the Articles for the Gov- 
ernment of the Navy," and dismissed. C. M.^O. 55, 1S94. 



DEBTS. 155 

22. Promises to pay— Failure to carry out specific promises, regarding settlement of 

debts, made in official communications, may be charged under "Scandalous conduct 
tending to the destruction of good morals." C. M. O. 98, 1905; 5, 1909. 

Failure to carry out specific promises regarding settlement of debts made to the 
Major General Commandant of the Marine Corps in official communications may 
be charged under "Scandalous conduct tending to the destruction of good morals." 
C. M. O. 98, 1905. See also C. M. O. 5, 1909. 

Chief gunner dismissed by general court-martial for failure to pay just debts after 
repeated promises to do so. C. M. O. 2, 1916. 

23. Restitution — Officer tried for failure to pay debts made a part payment without 

solicitation and before he was aware that he was to be brought to trial before a court- 
martial. This fact was stated in a recommendation by the members to the clemency 
of tbe revising power and the department exercised clemency. C. M. O. 23, 1909. 

24. Scandalous conduct tending to the destruction of good morals— Neglect and 

failure to pay long overdue debts to merchant by officer, charged under. C. M. O. 48, 
1907; 48, 1910. See also Debts, 9. 

The court not only acquitted the accused upon both charges preferred against him, 
but did "most fully and honorably acquit" him, this being the very highest degree 
of the six different forms of acquittal known to naval procedure. By such action the 
court in effect put the highest stamp of approval not only upon the action of any 
person in the commissary department of the Navy who may borrow money without 
security from a Government contractor furnishing supplies to the Navy, but also upon 
the nonpayment of debts. C. M. O. 27, 1913, 9. 

25. Same — Violations of pledges or promises charged under. See Debts, 22. 

26. Sentence— That part of a sentence providing that the sum of $10 should be checked 

monthly against the accounts of the accused, to be paid to his creditor, until such 
payment shall liquidate the debt, was disapproved as it was not authorized by law. 

27. Specification for failure to pay— An enlisted man was tried by general court-martial 

for nonpayment of debts under the charge of "Conduct to the prejudice of good order 
and discipline." The question arose as to whether the specification alleged any 
offense when it did not expressly charge the accused " with refusal to pay the debts, nor 
is it even alleged that the debts are even due for payment." It is desirable that 
specifications alleging nonpayment of debts, after the necessary preliminary allega- 
tions, contain an averment somewhat in the following form, "and said debt being 
thereafter due and owing." File 26262-1626, J. A. G., Dec. 28, 1912. 

28. Sword as payment of a debt — Officer tried by general court-martial for leaving his 

sword in payment of a debt. CM. 0. 1, 1908. 

DECEASED PERSONS. 

1. Disposition of effects. See Disposition of Effects. 

DECEIT. 

1. Clemency— Among other grounds assigned for granting clemency was the fact that the 

accused possibly did not intend criminally to deceive, when he was charged with 
"falsehood." C. M. O. 23, 1909. 

2. Specifications— In cases of officers which allege deceit. C. M. O. 9, 1909; 10, 1909. 

DECISIONS. 

1. Department— Decisions and instructions of department in easily accessible form in 

Court-Martial Orders and ignorance of or inattention to them are inexcusable. 
C. M. O. 42, 1915, 7, 8. 

2. Heads of departments— Binding on their successors. See Res Judicata. 

3. Secretary of the Navy— Decisions of Secretary of the Navy distinguished from opinions 

of the Judge Advocate General. See Judge Advocate Genekal, 30. 

DECK COURTS. 

1. Appeals— Accused may appeal. See Appeals, 6, 7. See also Flie 27217-1752, Sec. 

Navy, Sept. 23, 1915, for an actual appeal denied by the Secretary of the Navy. 

2. Same — Except in casestof appeal, separate sheets containing the testimony of witnesses 

called in a deck court should not be forwarded to the department as a part of such 
records as the testimony thus recorded is intended only for the guidance of the con- 
vening authority in his approval or disapproval of the finding and sentence. ( Navy 
Regulations, 1913, R-516; Forms of Procedure, 1910, p. 181; C. M. O. 33, 1909. p. i; 
Act of Feb. 16, 1909, sec. 6 (35 Stat. 621).) C. M. O. 29, 1914, 3. 



156 DECK COURTS. 

3. Bad-conduct discharge— Not to be adjudged. See Bad-Conduct Discharge, 2: 

Deck Court, 20. 

4. Boatswain— Actually in command of a naval vessel mav convene a deck court. File 

27217-919. See also File 26289-2584; C. M. O. 6, 1915, 5-6; Summary Courts-Martial, 
105. 

5. Same— May not act as deck court officer. See Deck Courts, 62. 

6. Bread and water — Medical officer's certificate. See Confinement, 5; Deck 

Courts, 8. 

7. Commanding officer— As deck court officer. C. M. O. 24, 1909, 3; 34,1913, 4; File 

27217-1314. See also Deck Court, 10, 14. 

8. Confinement— Over 20 days not to be adjudged. C. M. O. 24, 1909, 3; 1, 1914, 5. 

See also Confinement, 10. 

In cases involving confinement on diminished rations or on bread and water, ex- 
ceeding a period of 10 days, the deck court record should bear certificate of the 
senior medical officer that the sentence will not be seriously injurious to the health 
of the accused. See Confinement, 5. 

Confinement and reduction in rating may not both be included in same sen- 
tence. C. M. O. 33, 1914, 5. 

9. Consent to trial— Accused must consent. File 27217-1927; 27217-192S. See also Deck 

Courts, 50; Summary Courts-Martial, 26. 

10. Constitution of— By act of February 16, 1909, section 2 (35 Stat. 621), the President 

is expressly authorized to prescribe rules and regulations as to details of the " consti- 
tution, powers, and procedure" of deck courts. In carrying out this power, Navy 
Regulations, 1913, R-503 and R-504, prescribe that — 

"503. Officers shall not be ordered as deck courts who are below the rank of lieuten- 
ant in the Navy or captain in the Marine Corps, except in cases where there is no officer 
of such rank, or of higher rank, attached to the vessel, navy yard, or station, or com- 
mand, as the case may be. 

" 504. An officer empowered to order deck courts shall not designate himself for this 
duty unless he is the only commissioned officer attached to the vessel, navy yard, or 
station, or command, or unless the subordinate officers are below the specified rank, 
in which cases he shall constitute the deck court and finally determine the cases tried 
by him, and no order appointing the court need be issued, but the officer in question 
shall enter on the record that he is ' the only officer (of the required rank) attached to 
the vessel (navy yard) (naval station) (present with the command).' In these cases 
no approval of the sentence is necessary, but he shall sign the record and date his 
signature in the manner shown by the authorized forms of procedure." C. M. 0. 34, 
1913, 4. See also C. M. O. 7, 1914, 11. 

11. Same — Inspectors-Instructors of Naval Militia as deck court officers. File 3973-102:2, 

J. A. G., Aug. 21, 1915. 

12. Same — A deck court shall consist of one commissioned officer only, who, while serving 

in such capacity, shall have power to administer oaths, to hear and determine cases, 
and to impose, in whole or in part, the punishment prescribed by article 30 of the 
Articles forthe Government of the Navy. CM. 0. 14,1911,5-6,8,9. SeealsoC.M. O. 
7, 1914, 11. 

13. Convening authority— Must sign the record constituting the court. C. M. O. 34, 

1913, 5. 

14. Same— Who may convene. CM. O. 24,1909,3; 34, 1913, 4; file 27217-1314; 27217-919. 

See also Deck Courts, 10; Summary Courts-Martial, 22. 

15. Convening order— The order constituting the court shall be in writing. (R-502.) 

16. Court-martial order— Deck court officer mentioned by name in a court-martial order. 

C M. O. 34, 1913, 4. 

17. Date of trial— The date of trial must appear on the record. CM. O. 34, 1913, 5. 

18. Designation of — The proper designation of a deck court is. "deck court" andnofdeck 

court-martial." (Act of Feb. 16, 1909, sec. 2, 35 Stat. 621.) C.M.O. 29, 1914, 3. 

19. Disapproval of— The department disapproved the proceedings and sentence of a deck 

court because an ensign acted as deck court officer contrary to law as outlined in the 
act of February 16, 1909, sec. 2 (35 Stat. 621), and Navy Regulations, 1913, R-503 and 
R-504, the disregard of which was a fatal defect and invalidated the entire proceedings. 
C. M. O. 34, 1913, 4. 

20. Discharge not to be adjudged— The act of Congress entitled "An act to promote the 

administration of justice in the Navy," approved by the President February 16, 1909 
(35 Stat. 621), as set forth in the department's General Order No. 12, of February 17 
1909, and in Article R-502, Navy Regulations, provides that in no case shall a deck 



DECK COURTS. 157 

court adjudge discharge from the service, nor shall it adjudge confinement or forfeiture 
of pay for a longer period than 20 days. C. M. O. 24, 1909, 3; 1, 1914, 5. 

21. Enlistment record — Entries of conviction by deck courts in enlistment records must 

be authenticated by the signature of the commanding officer. File 27217-12. 

22. Evidence — Record of testimony will be forwarded to department only in cases of 

appeal. C. M. 0. 33, 1909, 2. See also Deck Courts, 2. 

23. Extra police duties— Except when the offender is serving on a receiving ship or at a 

shore station, sentences involving extra police duties are undesirable, demanding from 
others increased watchfulness and supervision. (Navy Regulations, 1913, R-619 (5).) 
C. M. 0. 15, 1910, 12. But this will not be construed as prohibiting the imposition of 
this sentence on board ships on which circumstances render it desirable. 

24. Finding— The finding and sentence in deck courts should never be typewritten, but 

should be in the handwriting of the deck court officer. C. M. O. 24, 1909, 3. 

25. 1-4893. See Naval Instructions, 1913, 1-4893. 

26. Jeopardy, former — A trial by deck court composed of a boatswain , though completed , 

does not constitute former jeopardy, as the deck court so constituted was without 
jurisdiction and illegally constituted, in that the law requires the deck court officer to 
be a commissioned officer. The man may therefore be tried for the same offense before 
a properly constituted deck court or court-martial. File 27217-1648, Sec. Navy, 
Mar. 24, 1915; C. M. O. 12, 1915, 7. See also C M. O. 42, 1909, 16; File 27217-1611. 

27. Judge— Deck court officer, as. C. M. O. 14, 1911, 7. 

28. Jury— Deck court officer, as. C. M. O. 14, 1911, 7. 

29. Jurisdiction— Of a deck court is expressly limited by law to minor offenses. C. M. O. 

7, 1914, 10. 

30. Limitation of punishments. C. M. O. 1, 1914, 5; 35, 1915, 7. 

31. Medical officer's certificate— Required on record when sentence includes confinement 

on bread and water or reduced rations for over 10 days. See Confinement, 5; Deck 
Courts, 8. 

32. Oath— The deck court officer shall swear the recorder to keep a true record, but the 

recorder shall not swear the deck court officer. C. M. O. 24, 1909, 3; 14, 1911, 4; File 
27217-949, Sec. Navy, Nov. 15, 1912. 

Deck court officer, while serving in that capacity shall have power to administer 
oaths. C. M. 0. 14, 1911, 9. See also Deck Courts, 12. 

33. Officer— Illegally sworn as a witness. See Deck Courts, 58. 

34. Origin— Original correspondence proposing the deck court. File 1174-04, J. A. G., 

Feb. 4, 1904. See also An. Rep. J. A. G., 1904, p. 8; 1908, p. 8. 

35. Pay — In no case shall a deck court adjudge discharge from the service, nor shall it ad- 

judge confinement or forfeiture of pay for a longer period than 20 days. The order 
constituting the court shall be in writing. C. M. O. 24, 1909, 3; 1, 1914, 5. See also 
File 3980-452: 2, J. A. G.,Dec. 8, 1909, p. 7; 27217-1900. Sec. Navy, Aug. 24, 1916. 

Loss of pay in both summary courts-martial and deck courts should be ex- 
pressed in dollars and cents— not days' pay— and should be based upon the actual 
pay, not including extras for mess cook, gun pointer, acting coxswain, etc. C. M. O. 
24, 1909, 3. See also File 221 4-62. 

36. Same — Summary courts-martial and deck courts are authorized by section 8 of the act 

of February 16, 1909 (35 Stat. 621), to award a loss of pay by itself, without confine- 
ment. CM. 0.24,1909, 3. 

37. Same— Loss of pay in summary courts-martial and deck courts should be checked upon 

approval by the Senior Officer Present or convening authority, respectively, and no 
notation should be made as to the loss of pay being "Subject to the approval of the 
Secretary of the Navy." Such reference is no longer necessary, as is evident from 
section 17 of the act of February 16, 1909 (35 Stat. 621), embodied in General Order No. 
12, Feb. 17, 1909. C. M. O. 24, 1909, 3. 

38. Same— Notation must be placed on the record that checkage or deduction of pay 

has been made pursuant to the sentence. C. M. O. 34, 1913, 5. 

39. Same— Officer making checkage or reduction of pay must sign notation that pav has 

been checked or deducted. C. M. O. 34, 1913, 5. 

40. Same— Rate of pay should appear on the record. C. M. O. 34, 1913, 6. 

41. Same— In both summary court-martial and deck court records, the pay officer should 

show over his signature the amount of checkage or deduction made in each case. 
CM. 0.24, 1909,3. 

42. Place of trial— Should appear on the record. C. M. O. 34, 1913, 5, 6. 

43. Plea— Record must show plea of accused. File 27217-1675, Sec. Navy, Apr. 26, 1915. 

44. Precept. See Deck Courts, 15. 



158 DECK COURTS. 

45. Rate of pay— Should appear on the record— The rate of pay of an accused should be 

indicated on the records of deck courts. The statement of the pay status of an accused 
is incorporated in deck court records as a means of preventing excessive or illegal sen- 
tences involving pay. (Forms of Procedure, 1910, p. 161, 180; C. M. O. 28, 1910, 4.) 
CM. 0.34,1913,4; 12,1915,7. 

46. Bank of deck court officer. C. M. 0. 24, 1909, 3; 34, 1913, 4. See also Deck Courts, 

10. 

47. Record— The record of a deck court shall, when completed, he at once forwarded by 

the convening authority to the Judge Advocate General. (R-516.) 

48. Recorder — Is not a part of the deck court; he is merely detailed to perform the clerical 

duty. C. M. 0. 14, 1911, 8-9. See also Deck Courts, 58. 

The law does not require the deck court officer to be sworn and although it re- 
quires the recorder to be sworn, a neglect in this respect would be proper grounds for 
objection by accused at time of trial, and not one that he could use or not use at 
his own pleasure when the result of the trial becomes known. C. M. O. 24, 1909, 3; 
14, 1911, 4; File 27217-949. See also Deck Courts, 58. 

49. Reduction in rating— And confinement, not both to be included in same sentence. 

See Confinement, 11. See also File 27217-787, J. A. G., May 18, 1912. 

50. Refusing trial by deck court— In case a man refuses trial by deck court and is brought 

to trial before a summary court, no mention concerning such refusal should be made 
in the record of the summary court-martial. C . M. . 24, 1909,3. See also Challenges, 
3; Deck Courts, 9; Summary Courts-Martial, 26. 

51. Sentence — Deck courts can not legally impose sentences not specifically provided for 

by statute. C. M. O. 33, 1914, 4. See also File 27217-1752, Sec. Navy, Sept. 25, 1915. 

52. Same— Confinement or loss of pay over twenty days or discharge not to be adjudged. 

See Deck Courts, 35. 

53. Same — Extra police duties and loss of pay are the only additions which may be made 

to the other punishments authorized by A. G.N. 30. Part of one of the punishments 
may not be added to a part of another of those punishments. C. M. O. 33, 1914, 4. 

54. Same — Must be in handwriting of deck court officer. C. M. O. 24, 1909, 3. 

55. Same — Reduction in rating. See Deck Courts, 8, 49. 

56. Same— An enlisted man was tried by deck court and sentenced to "forty-eight (48) 

hours extra duty." The department disapproved the sentence, since deck courts 
are restricted in their sentences to "the punishments prescribed by article thirty of 
the Articles for the Government of the Navy: Provided, That in no case shall such 
courts adjudge discharge from the service or adjudge confinement or forfeiture of pay 
for a longer period than twenty days." (Act Feb. 16, 1909, sec. 2, 35 Stat. 621; see 
also Navy Regulations, 1913, R-502.) Hence, sentences to "extra duties," instead 
of "extra police duties, ' ' are illegal, as imposing a punishment differing in nature from 
those authorized. (See Navy Regulations, 1913, R-619 (1). See also Forms of Pro- 
cedure, 1910. p. 179; C. M. O. 2, 1912, pp. 4-11; 33, 1914, pp. 4-6.) File 27217-1761, Sec. 
Navy, Oct. 6, 1915; C. M. O. 35, 1915, 7. 

Where an enlisted man was sentenced to "two (2) months' restriction," etc., the 
department set that part of the sentence aside. File 27217-1831, Sec. Navy, Feb. 
19, 1916. 

The sentence may be carried into effect upon approval of the convening authority 
or his successor in office. (Act Feb. 16, 1909, 35 Stat., 623.) File 39S0-1075, J. A. G. 
April 6, 1915. 

57. Service records— Entries in. See Deck Courts, 21. 

58. Setting aside — An enlisted man was tried by deck court, pleaded "not guilty," found 

"guilty " by the deck court, and sentenced. He appealed from the sentence m accord- 
ance with the act of February 16, 1909, section 6 (35 Stat. 621), and the entire record of 
the case was transmitted to the department. 
The grounds of the appeal were stated as follows: 

(a) That after every possible effort made, before my person, by the officer holding 
the court and before the actual trial took place, to procure any suitable witnesses who 
could be used by the prosecution, no witness could be found who would state posi- 
tively, when the trial began, that I had been given an order to return at a stated 
time. 

(b) That in consequence of the failure of the court to procure this witness the officer 
before whom I was tried turned prosecuting witness himself, and that while acting 
as such turned the court over to the recorder, an enlisted man. 

(c) That I was advised by the court that it was better for me to plead "Guilty," 
since it was cheaper in the end and would save time, and that I would be foolish to 
plead otherwise. 



DECK COURTS. 159 

He therefore maintained that he was illegally tried, and that an examination oi the 
record of testimony and the proceedings of the court sustain this view. 

The deck court, in this case, consisted of a medical officer, with a yeoman second 
class acting as recorder. The record shows that the deck court officer was called as a 
witness for the prosecution, was sworn by the recorder, and gave material evidence. 
No objection was made by the accused to the manner of the swearing of this witness, 
nor to any of his testimony. 

The question presented by this state of facts is as to the effect of the deck court 
officer taking the stand as a witness for the prosecution and being sworn by the re- 
corder, an enlisted man. 

In this case the deck court officer might be a competent witness if there were any 
method by which he might be legally sworn. 

The act of February 16, 1909 (35 Stat. 621, sec. 2), provides that the deck court "shall 
consist of one commissioned officer who, while serving in such capacity, shall have 
power to administer oaths, to hear and determine cases, and to impose in whole or in 
part the punishments prescribed * * *." 

Owing to the fact that the deck court officer is alone authorized to administer the 
oath to witnesses, and as he may not swear himself, he was in fact incompetent. But 
in criminal as well as in civil actions, when the witness leaves the stand, there is an 
end of all question as to his competency; it is then too late to object on this ground, 
especially if his incompetency appeared when he was first on the witness stand. 
(A. & E. Encycl. Law, v. 30, p. 971, and cases cited.) 

Therefore the objection, regarded as being to the witness's competency, comes too 
late when not made, as in this case, until after the conclusion of the trial. As stated 
by De Hart, supra, the testimony of an incompetent witness does not necessarily 
vitiate the proceedings. 

There is another question, however, to be considered, and that is as to the effect 
of the deck court officer taking the witness stand, occupying the position of witness, 
and relinquishing the conduct of the case to the recorder, whose functions are in no 
sense judicial, but are purely ministerial and subordinate. If, for example, a question 
had arisen as to the admissibility of evidence given by the witness in question, by 
whom would the matter have been decided? By the witness ; resuming his seat as 
deck court officer, or by the recorder? The deck court officer is acting not alone as 
jury, but also as judge, and in such status he should not also act as a witness. A 
judge is not a competent witness in a cause being tried before him. (23 Cye. 589.) 

While the authorities are not uniform that a judge must retire from the bench after 
appearing as a witness, yet, perhaps by the weight of authority, such a withdrawal is 
now regarded as the more proper one; but it seems, as already stated, that timely 
objection must be made even in such cases. Of course, in the case of a deck court, the 
voluntary withdrawal of the deck court officer would be impossible and the matter 
should be provided for by the appointment of a di.Terent deck court for the trial of 
the case. As no objection was made in the case under consideration before the court 
concluded its consideration thereof, it might therefore be held that technically the ac- 
cused acquiesced in the reception of the evidence, that the irregularity was thereby 
cured, and that the proceedings were not objectionable on that ground alone. But it is 
believed that no recent case of good authority supports the view that, where there is 
but a single judge who acts not only as such but also as jury, he should, if called as a 
witness, remain on the bench during the remainder of the trial. Such conduct would 
undoubtedly be highly improper. In this case it is the more so because of the fact 
that the testimony of the deck court officer, the judge, was highly material to the 
prosecution, and it would seem that, as it was given by the deck court officer himself, 
it would inevitably tend to bias his ultimate decision no matter how favorable the 
evidence of the defense misjht have been. 

The proceedings also show that the deck court officer allowed the recorder, an 
enlisted man, to conduct the case and to examine the witnesses for both the prosecu- 
tion and the defense. The status of the recorder of a deck court is not at all the same 
as that of a recorder of a summary court-mart ial. Such court consist s "of t hree otlicers 
not below the rank of ensign, as members, and of a recorder.'' (277, A. Or. N.) 
On the other hand, section 2 of the act of February lt>, 1909 (35 Stat. 621), provides 
that the deck court "shall consist of one commissioned officer only," and the recorder 
of such court is no constituent part thereof, but is detailed merely to perform the 
clerical work of the court. Therefore, in allowing the recorder of t his court to perform 
the functions of the deck court officer himself was contrary to law, and such delegat ion 

50756°— 17— 11 



160 DECK COURTS. 

to the recorder of the duties that should be performed by the deck court officer, includ- 
ing the administration of the oath to him as a witness, was entirely irregular. 

In addition to the foregoing facts, if the testimony of the deck court officer be disre 
garded, the remaining evidence in the case does not 'appear to prove the alleged offense 
beyond a reasonable doubt. Nor does it appear from the record, as should be the case 
and as required by the Forms of Procedure, whether an opportunity was afforded or 
desired for cross-examination of the witnesses. 

In view of the foregoing facts, as well as minor irregularities not deemed necessary 
to notice specifically because of those already mentioned, the department set aside 
the proceedings of the deck court in this case. C. M. O. 14, 1911, 9. 

59. Specifications— The following specifications for alleged offenses have appeared upon 

deck court records: 
"Specification: Disobedience of orders." 
"Specification: Returning from liberty three hours overtime. " 
"Specification: Duty rifle." 

" Specification: In that he made a false statement to his superior officer. " 
The above specifications are insufficiently drawn and not in accordance with 
article 1706, United States Navy Regulations, 1909 [R-713|. 

It is manifest that failure to set forth in each specification the name and ra^e of the 
accused, the offense and the date of the commission thereof, and all other material 
facts connected with the offense not only militates against the accused, but makes 
possible a second trial for the same offense. C. M. O. 42, 19G9, 16. 

60. Speedy trials. See Speedy Trials. 

61. Warrant officers — When actually in command of naval vessels may convene deck 

courts. See Deck Courts, 4, 5. 

62. Same — A warrant officer, not being a commissioned officer, can not act as a deck court 

officer, and in a case where one acted as such the department stated that a deck court 
"so constituted has no legal status, has no jurisdiction, and that its acts are ab initio 
null and void." (See Navy Regulations 1913, R-502;C. M. 0.'7, 1914, 11.) File 27217- 
1648, Sec. Navy, Mar. 24, 1915; C. M. O. 12, 1915, 5. See also Deck Courts, 26. 

DECORATIONS. See also Officers of the United States. 

1. Act of Congress— (Private), Jan. 31, 1881 (21 Stat. 603)— Authorizing certain officers to 

accept certain decorations from foreign governments. — Cross of the Legion of Honor 
from France. — The Order of Kemehameha the .birstfrom the King of the Hawaiian 
Islands. — A pair of flower vases and a lacquered box from the Japanese Government. — 
The Grand Cross of Naval Merit, with a white badge, from the Spanish Government. 
G. 0.261, Feb. 7,1881. 

2. Jurisdiction — In view of the fact that the Secretary of State under direction of the 

President has charge of all matters involving the foreign relations of the United States, 
the question as to whether an officer may accept medals, diplomas, decorations, etc., 
from a foreign state without the consent of Congress is one which is under the j urisdic- 
tion of the Department of State. File 9644-31, J. A. G., Aug. 20, 1913. See aUo File 
9644-27, J. A. G., Jan. 24, 1913. Seealso File3707-04, J. A. G., June 15,1904; 13, J. A. G. 
332, holding that certain medals tendered through the Department of State from 
foreign Governments may properly be delivered by Navy Department to the enlisted 
men for whom they were intended. 

3. Medal — The acceptance by a naval officer who is a naval attache at London, of the 

medal commemorative of the sixtieth anniversary of the reign of Queen Victoria, 
would be a violation of the act of Congress approved Jan. 31, 1881 (21 Stat. 603). File 
4184-97, J. A. G., Aug. 5, 1897. 

4. Medal and diploma— By an officer from Chinese Government. File 9644-31, J. A. G., 

Aug. 20, 1913. 

5. Prussian life-saving medal and ribbon — Acceptance of bv enlisted men. See File 

9644-27, J. A. G., Jan. 24, 1913. Seealso File 9644-31, J. A. G., Aug. 20, 1913; 9644-32, 
J. A. G., Sept. 25, 1913. 

6. Public wearing— Of medals presented by foreign governments is not authorized by the 

Navy Regulations. File 3707, June 15, 1904. See in this connection act Jan. 31, 1881, 
sec. 2 (21 Stat. 604), which is published in full in G. O. 261, Feb. 7, 1881. 

DEFENDANT. 

1. Court of inquiry record— Defendant can not demand a copy of. See Courts of 
Inquiry, 12. 

DEGRADE. 

1. Questions— The answers to which would degrade. Sec Self-incrimination 11, 12. 



DEMURRER. 161 

DEGREE OF CRIMINALITY INVOLVED. 
1. Accused pleads "guilty"— It is directed that in all cases where the accused pleads 
"guilty," and the specification does not set forth the particulars of the offense, the 
court call upon, or permit, the judge advocate to adduce testimony that may conduce 
to the correct understanding, both by the court itself and the reviewing authority as 
to the decree of criminality involved and the proper measure of punishment to he 
imposed. C. M. 0. 6, 1909, 3. See also C. M. O. 50, 1900, 1; Evidence, 42. 

DELEGATION OF POWERS. 

1. Courts-martial. See Couet, 65; Deck Cotjets, 58 (p. 159). 

2. President. See President of the United States, 13, 16. 

3. Public officers— It is a well settled rule that a public officer can not delegate powers 

which require the exercise of judgment and discretion, but authority to do acts 
merely administrative or mechanical may be delegated. See File 16S9-7, Oct. 30, 
1906. 

4. Secretary of the Navy— Must personally review general courts-martial of which he is 

the convening authority. See Criticism of Courts-Maetial, 35; Seceetaey of 
the Navt, 24. 

"DELIBERATELY." 

1 . Definition—" B v the use of the word 'deliberately ' in describing a crime the idea is con- 
veyed that the perpetrator weighs the motives for the act and its consequences, the 
nature of the crime, or the things connected with the intention, with a view to a deci- 
sion thereon: that he carefully considers all these, and that the act is not suddenly 
committed. It implies that the perpetrator must be capable of the exercise of such 
mental powers as are called into use by deliberation and the consideration and weigh- 
ing of motives and consequences. " (State v. Wells, 1 N. J. Law (Coxe), 424.) C. M. 
O. 14, 1910, 10. 

"DELIBERATELY AND WILLFULLY." 

1. Avoiding foreign service— An accused was charged with "deliberately and willfully " 

avoiding foreign service, by absenting himself without authority, and found guilty. 
C. M. O. 69, 1900. 

2. Fraudulent enlistment— Where a court found the accused guilty of "deliberately 

and willfully " concealing certain facts from a recruiting officer, but that such act of the 
accused was "without culpability" the department held that such findings were 
utterly inconsistent and that the court, in revision, should not have adhered to such 
finding, and therefore disapproved the proceedings, findings, and acquittal. CM. O . 
7, 1911, 16. 

3. Missing ship — Where an accused was charged with " conduct to the prejudice of good 

order and discipline," the specification alleging that he "willfully and deliberately" 
remained absent until the ship sailed, thereby avoiding duty on said ship, and' to 
which accused pleaded guilty, and then stated that he left the ship and got drunk and 
when he "came to," he went to the dock and found the ship gone, the department 
held that such statement was inconsistent with the plea of guilty to deliberately and 
willfully remaining absent from the ship. These words imply that the act was done 
in the free activity of the perpetrator's mind, after a careful weighing of the motives 
and a definite decision to commit the act. C. M. O. 14, 1910, 10-11. See also File 
26251-12739, Sec. Navy, Jan., 1917. 

DEMURRER. 

1. Counsel for accused— Demurred and objected to the specification of a charge, and the 

"objection" was overruled by the court. G. C. M. Rec. 2S6S1, pp. 27, 39. 

2. Same — After arraignment and before pleading, the accused, by his counsel, offered 

what he termed a demurrer, alleging that the third charge was merely a repetition of 
the first, and claiming that the " gravamen of the offense in the first charge is alcohol- 
ism and that of the third charge is drunkenness, which are one and the same thing." 
The court very properly overruled this contention. C. M. 0. 104, 1S96, 3. 

3. Definition. See Words and Phrases. 

4. " Motion to strike out"— Is virtually a demurrer. G. C. M. Rec. 21478, p. 4. 

5. No such thing— As a demurrer in naval courts-martial procedure. File 26251-12309. 

J. A. G.. Oct., 1916. 

6. Technical errors— Are, in general, those which the charges and specifications disclose. 

and which would be sufficient to sustain a demurrer or special plea. C. M. O. 42, 
1914, 3. See also Charges and Specifications, 33. 



162 DEPOSITIONS. 

DENTAL CORPS. See Dental Subgeons. 

DENTAL RESERVE CORPS. 

1. Acts of Aug. 22, 1912, and Mar. 4, 1913— The Attorney General held that the laws 
were properly interpreted by the Judge Advocate General, and that the act of Mar. 4, 
1913, did not repeal the provisions of the act of Aug. 22, 1912, establishing the regular 
Dental Corps of the Navy. 

The Dental Reserve Corps is being and has since its creation in 1913 been adminis- 
tered in all respects the same in relation to the regular Dental Corps as is the Medical 
Reserve Corps in relation to the regular Medical Corps of the Navy, which was the 
clear intention of the law. File 13707-39:7, J. A. G., Jan. 15, 1916. 

DENTAL SERVICES. 

1. Prisoners — Payment for dental services rendered general court-martial prisoners is 

made from such pav as mav be due them. If no such pav is due, then it is paid bv 
the Government from "Pav, miscellaneous." File 262S7-12S, Mar. 28, 1912. 

2. Enlisted men. File 13707-27,' J. A. G., Jan. 17, 1913; 26257-12 ; 262^5-57: 26251-3905:7: 

26251-3 36:18; 26251-5408:6; 26251-6 C 38:2; 26251-5239:4; 26254-445: 26254-1250:1; 26262- 
1077:5; 13707-27:1; lOCompt. Dec, 702; 17Compt. Dec., 555; 86 S. and A. Memo., 641. 

DENTAL SURGEONS. 

1. Acting Assistant Dental Surgeons. See Acting Assistant Dental Surgeons, 1. 

2. Same— Where Congress authorized the appointment, from the Navy Dental Reserve 

Corps, of ''dental corps officers of permanent tenure," the language quoted was con- 
strued to mean that such appointments were to be made to the grade of acting as- 
sistant dental surgeon, which was the only grade in the Regular Dental Corps at the 
time the law was passed, as the grade of assistant dental surgeon was not to come 
into existence until more than two years later. File 13707-3S: 9. 

3. Circular— For the information of persons desiring to become. File 1307-48, J. A. G., 

Aug. 2, 1915. 

4. Dental Reserve Corps— Act, Aug. 22, 1912 (35 Stat., 891) did not establish. File 

13707-24, J. A. G., Oct. 19, 1912. Seealso File 13707-30. J. A. C. Apr. 7, 1913. 
But the act of Mar.4. 1913, and act of Aug. 29, 1916, did establish such reserve corps. 

5. Examinations— Scope of. File 13707-53. 

6. Medical Reserve Corps— Appointments ofdental officers to the Medial Reserve Corps 

of the Navy under act Aug. 22, 1912 (35 Stat.. 891). File 13707-20, J. A. G., Feb. 
19, 1913. 

7. Naval Academy— Dentist at the Naval Academy. File 137C7-25, J. A. G., Oct. 24, 

1912; 262S0-5S, Sec. Navy, June 17, 1915, pp. 3-4; 13707-36. See also Appointing 

Power, 2. 
8 Naval Dental Corps— "Shall be a part of the Mecic:d Department of the >avy" 

(Act, Aug. 29. 1916. 39 Stat. 574). 
9. RanR of. See File 13707-20, J. A. G., Sept. 7, 1912. 

DEPARTMENT OF JUSTICE. Seealso Attorney General. 

1. Collision— Even though damages are slight, Department of Justice will take cognizance. 

See Collision, 7. 

2. Counsel for United States— In Court of Claims. C. M. 0. 12. 1915, 12. See also Reg- 

ulations, Navy, 16. 

3 Federal judge— Irregular action of, brought to attention cf Department of Justice. 
C. M. O. 22, 1915, 7. See also Deserters, 2. 

4. Legal assistance— For oihcers and enlisted men. C. M. O. 20, 1915, 5. Seealso Legal 
A<si<taxce for Officers and Enlisted Men. 

5 , Naval cases— Department of Justice will instruct district attorneys to render assistance 
to officer upon whom a writ of habeas corpus is served (See File 26522; G. O. 121 : 
also in other cases of legal proceedings instituted against officers of Navy as result of 
official acts. See Legal Assistance for Officers and Enlisted Men. 

DEPARTMENT OF LABOR. 

1. Chinese — Citizenship of. See Citizenship, 5. 

DEPOSITIONS: 

1. Act of Congress, Februarv 16, 1909 (35 Stat. 622)— Authorizes the taking and putting 
in evidence of depositions and provides that the same may be taken and used before 
naval courts-martial except in capital cases and in cases where the punishment may 
be confinement or imprisonment for more than one year. 



DEPOSITIONS. 163 

The statute further provides that depositions may be taken on reasonable notice to 
the opposite party, and may be taken of persons in the naval or military service sta- 
tioned or residing outside of the State, Territroy , or District in which a naval court- 
martial is ordered to sit, or who are under orders to go outside of such State, Territory, 
or District. C. M. O. 47, 1910, 9-10. 

2. Affidavits— Differ from depositions, as in the latter the opposite party has an oppor- 

tunity to cross-examine. C. M. O. 21, 1910, 12; 48, 1915, 2. See also Affidavits, 4. 

3. Approval — Necessity of approval by convening authority and court.— Where the taking 

of depositions is explicitly authorized by the law (sec. 16 of the Act of Feb. 16, 1909, 
35 Stat, 622), they may be taken by the judge advocate without approval either by the 
convening authority or the court. In doubtful cases the above law leaves the matter 
entirely to the convening authority. (C. M. O. 29, 1915, pp. 5-6.) Forms of Pro- 
cedure, 1910, p. 67, provides the method of procedure to obtain depositions but does 
not state that the consent of the court must first be obtained before a deposition is 
taken. In other words, the power of the court is merely to pass upon the interroga- 
tories submitted and to propose such additional questions as it may deem necessary, 
and not to say whether or not the deposition may be taken. When a deposition has 
thus been taken, and is offered in evidence, the court may then decide, if objection is 
offered, whether or not it is admissible. C. M. O. 41, 1915, 1, 11. 

4. Chiefs of Bureaus, by— Chiefs of Bureaus in the Navy Department have been author- 

ized by the Secretary of the Navy to answer interrogatories propounded before a com- 
missioner duly appointed by a State court to take their testimony without any sum- 
mons being issued bv a justice of the Supreme Court of the District of Columbia, as 
provided for by R-871. See for example File 12475-52, Oct. 31, 1914. 

5. Constitutionality of— It was held by the Attorney General that an Article of War 

authorized "depositions taken in accordance with it to be read in cases not capital;" 
although the Constitution provides that the accused in criminal prosecutions shall 
have the right to be confronted with the witnesses against him. (9 Op. Atty. Gen., 
311, 312.) File 26260-1392; 26260-697, J. A. G., June 29, 1911, p. 30. 

6. Courts of inquiry— In this case the department directed that the evidence desired by 

the court of inquiry be obtained by depositions. File 26250-739:1, Sec. Navy, Feb. 
25, 1916. 

The evidence adduced and preserved before courts of inquiry is superior in every 
respect to depositions. (Mullan v. U. S., 42 Ct. Cls., 3 57, 176.) See Courts of In- 
quiry, 21. 

7. Dismissal— If depositions are used by prosecution dismissal should not be included in 

sentence. Sec" Depositions, 12. 

8. Maximum sentence, when used— In any case where it is necessary to use depositions 

at the trial thereof and depositions are so used, the maximum punishment under such 
circumstances shall in no case exceed imprisonment or confinement for one vear. 
(R-900), overruling C. M. O. 47, 1910, 9-10; 5, 1911, 5. See also in this connection, 
C. M. O. 50, 1893, 6; 99, 1893; 104, 1836, 6; 11, 1897, 2. 

9. Party securing may decline to introduce as evidence — At the request of the accused 

the department had directed that the deposition of a certain enlisted man be taken. 
After this deposition was taken the accused discovered that its contents were against 
his interests and at the trial declined to introduce it in evidence. 

Thereupon the judge advocate attempted to introduce the deposition in evidence, and 
upon objection being made by the accused the court sustained the objection. 

The department held that the action of the court was proper. The law gives an 
accused the right to cross-examine a witness testifying against him and of this right he 
should not be deprived. If the judge advocate desired the testimony of the 'witness 
in question to be introduced for the prosecution, the proper procedure would have 
been for him to secure an entirely new deposition, in which case the accused would 
prepare the cross-interrogatories instead of the judge advocate. 

In cases like the above where the party taking the deposition has been taken by 
surprise, the court should allow the opposite party, if he desires, time to procure 
another deposition from the deponent. File 26251-113S2, Sec. Navy, Feb. 25. 1916: 
G. C. M. liec. 31728; C. M. O. 5, 1916, 5-6. 

10. Prisoners. See General Order, No. 121, Sept. 17, 1914, 15. 

11. Private litigation. See CIeneral Order No. 121, Sept. 17, 1914,15. . 



164 DEPOSITIONS. 

12. Used by prosecution to aid in securing conviction of officer— Sentence of dismis- 

sal not approved as a matter of policy— As it became necessary for the judge advocate 
in order to prove the offenses alleged in the charges and specifications in this case, to 
introduce, in behalf of the prosecution, a deposition obtained from a witness for the 
prosecution whose presence before the court the exigencies of the service rendered it 
impracticable to obtain, the department does not consider it desirable as a matter 
of policy to approve a sentence calling for the dismissal of an officer in a case wnere a 
deposition has been thus used in securing his conviction. C. M. O. 11, 1916. 

13. Weight of— As compared with evidence adduced by a court of inquiry. See Courts 

of Inquiry, 21. 

DEPOSITS. 

1. Acting warrant officers— Entitled to make deposits and draw interest on them. File 

26254-2020, J. A. G., June 6, 1916. See also Acting Machinists. 

2. Fleet Naval Reserve — Deposits, with interest, of enlisted men transferred to Fleet 

Naval Reserve under provisions of Act, Aug. 29, 1916 (39 Stat. 589), must be paid 
to them at time they are so transferred. File 28550-22, Sec. Navy, Nov. 24, 1916. 

3. Marine Corps. See Marine Corps Order No. 84; File 5460-81; 5252-66, J. A. G., Mav 

13, 1915; 26S06-139, J. A. G., Feb. 26, 1916. 

4. Warrant officers— Act, February 9, 1889 (25 Stat. 657), does not authorize deposits of 

savings by warrant officers nor the continuance by them on d eposit of money deposited 
prior to appointment as officers; but when an enlisted man is appointed a warrant 
officer, his deposit account should be treated as though his enlistment had expired, 
as was formerly held by the department in the cases of mates before the practice of 
discharging and reenlisting them was commenced. (See File 16407. July 28, 1903; 
3031-5, Nov. 27, 1906.) File 26254-2020, J. A. G., June 6, 1916. See also C. M. O. 17, 
1916, 10. 

DEPRIVATION OF LIBERTY ON SHORE ON FOREIGN STATION. 

1. Confinement— Distinguished from. See Confinement, 12; Summary Courts- 

Martial, 92. 

2. Same — Both confinement and deprivation of liberty on shore on a foreign station mav 

not be included in the same summary court-martial sentence. C. M. O. 33, 1914, 5. 

3. Deprivation of liberty— Adjudged by a general court-martial. C. M. O. 40, 1893; 6, 

1896. 

4. Deprived of liberty— A general court-martial sentenced an enlisted man "to be de- 

prived of liberty. " C. M. O. 55, 1893. 

5. "On shore on foreign station"— A sentence of "deprivation of liberty" is illegal 

unless the words "on shore on foreign station" are added, and the court in adjudging 
sentence shall not exceed the limit of three months. C. M. O. 33, 1914, 2. 

DEPUTY MARSHALS. 

1. Rewards for deserters. See Rewards. 3. 

DERELICTS. 

1. Department authorized— Bureau of Navigation to take the necessary steps to sink 
or destroy a wreck reported bv the War Department as being a menace to navigation. 
File 4278-2, Sec. Navy, Oct. 18, 1907. 

DERIGIBLE HANGAR. See File 26842-8:14, J. A. G., July 15, 1916. 

DESCRIPTIVE LISTS. 

1. Desertion— Judge advocate introduced in evidence to prove "Desertion "the descrip- 

tive list of accused, wherein it was entered by his commanding officer that he had 
deserted on or about a certain date. This attempt of the judge advocate to prove 
desertion by a mere entry on the descriptive list is in error. C. M. 0. 141, 1897, 2. See 
also Descriptive List, 3. 

2. Fraudulent enlistment— Proof of. See Descriptive List, 3. 

3. Nature of —In reviewing the record of proceedings of a general court-martial in the case 

of a private, United States Marine Corps, it was noted that the judge advocate intro- 
duced and the court received in evidence the descriptive list furnished by the Adjutant 
and Inspector of the Marine Corps; which is neither an original enlistment record nor 
even a certified copy of one, but a paper made up from probably various reports and 
data furnished the office of the Adjutant and Inspector, and is not competent evidence 
of the facts set forth therein. (Winthrop's Militarv Law, 2 ed., pp. 555, 556; G. C. M. 
Order No. 37, dated Nov. 1. 1909, pp. 5, 6.) 

The judge advocate should have secured and offered in evidence the enlistment 
record or descriptive book of the accused. C. M. 0. 14, 1910, 15. 



DESCEIPTIVE LISTS. 165 

4. Same — A private, U. S. Marine Corps, was tried by general court-martial on charges 
of "Desertion" and "Fraudulent enlistment," 'and pleaded not guilty to both 
charges. 

The judge advocate introduced in evidence the descriptive list of the accused fur- 
nished from headquarters, U. S. Marine Corps, on which this entry appears: "Deserted 
from the Marine Barracks, navy yard, Mare Island, Cal., June 13, 1909." But this 
even does not appear to have been read to the court. Furthermore, even had it been, 
it is remarked that this paper is not such as is considered proper documentary evidence. 
It is neither an original enlistment record nor is it a certified copy of one, but a paper 
made up from probably several reports, and in no way an original document, and 
thus is not competent evidence, even if unobjected to. C. M. O. 37, 19C9, 5-6. 

DESCRIPTIVE ROLL. See C. M. 0. 141, 1897, 2. 

DESERTERS. 

1. Appointment— Of a deserter as a commissioned officer. See Desertion, 41. 

2. Arrest of— The act of February 16, 1909, section 15 (35 Stat. 622), provides "that it shall 

be lawful for any civil officer having authority under the laws of the United States or 
of any State, Territory, or District to arrest offenders, to summarily arrest a deserter 
from the Navy or Marine Corps of the United States and deliver him into the custody 
of the naval authorities." (See also act June 18, 1898, 30 Stat. 484, with reference to 
the Army.) [See R-3636 (1) as quoted in File 27403-132:1, J. A. G.,Nov.6,1916,p.3.] 

A deserter from the Navy, who had been arrested and placed in jail by a deputy 
constable and deputy county patrolman, was released by a Federal judge on habeas 
corpus proceedings, on the ground that there is no authority in law forthe arrest of 
nival deserters by civil officers as there is in the case of deserters from the Army. 
This action of the Federal judge was brought to the attention of the Department of 
Justice for such action as it might deem appropriate. File 26516-178, Sec. Navy , June 
29, 1915; CM. 0.22, 1915,7. See also File 26516-92: 1, J. A. G., Sept. 27, 1912; 
26516-38, J. A. G., Dec. 3, 1910, p. 4; War Department Circular No. 87, Oct. 23, 1908. 

The act, February 16, 1909, sec. 15 (35 Stat. 622), authorizes the arrest of deserters 
from the Navy by "any civil officer having authority under the laws of the United 
States, or of any State, Territory, or District to arrest offenders." Outside of his juris- 
diction a civil officer has no authority to make arrests but becomes a mere private 
citizen, and is not outside of his jurisdiction a civil officer within the meaning of the 
act of Congress above quoted. Held, That the authority of civil officers to arrest 
deserters must be coextensive with their authority to arrest other offenders; that the 
one can not exist without the other under the terms of the act of February 16, 1909, 
sec. 15 (35 Stat. 622), and that when a civil officer leaves his jurisdiction and loses his 
power to arrest offenders against the civil laws he at the same time loses his power to 
arrest deserters from the naval service. File 26516-218, J. A. G., Aug. 24, 1916. See 
also File 26516-92, J. A. G., Sept. 27, 1912. 

A deserter from the naval service may be legally arrested by (1) any officer or duly 
authorized enlisted man in the naval service; (2) any civil officer having general or 
special authority to arrest offenders within any given jurisdiction (act Feb. 16, 1909,' 
sec. 15, 35 Stat. 622); (3) private detectives who are authorized to make arrests; (4) any 
person who is expressly authorized by the naval authorities to arrest deserters. File 
26516-92 and 92:1, J. A. G., Sept. 27, 1912. 

The Navy Department "desires that detective work in connection with the appre- 
hension and delivery of deserters from the Navy in the United States shall be confined 
to recognized police officers. It is considered undignified and undesirable to encour- 
age or employ the services of private detectives or agents for such purposes, and the 
practice will be discontinued." File 24918, Sec. Navy, July 17, 1907. 

In a letter from the Department of Justice to the Secretary of the Navy, November 
17, 1906, it was stated: "Of course the right of military oilicers, whether'of the Army 
or Navy, to apprehend and return deserters is interwoven in the very fabric of the 
organization and administration both of the Army and the Navy.'' 

In the case of In re Fair (100 Fed. Rep. 149, 152) the following appears: "A deserter 
may be arrested by a military officer or private duly authorized to make the arrest." 

So also in Hutchmgs v. Van Bokkellcn (34 Me. 126)", cited in Kurt z v. Mo Hit (115 U. S. 
504), it was held that an oilicer o!' I lie Army may lawfully arrest a deserter and hold 
him for trial by court-martial without a warrant. File 7C57-oi>0. See. Navy, Dec 
29, 1915. 



166 DESERTERS. 

3. Same — When a deserter is delivered to the Navy the fact that the person who arrested 
him was not authorized to make such an arrest is not legal ground for his discharge 
from naval custody. This is a matter in which the Government has no concern, 
persons who assume to arrest deserters without legal authority therefor doing so at 
their peril. File 26516-92 and 92:1, Sept. 27, 1912. 

4. Same— Expenses of unsuccessful attempts to return. File 23120-20. See also File 

26516-92: 1, J. A. G., Sept. 27 ,1912. 

5. Same — Arrest of deserter paroled by civil courts. See Jurisdiction, 100. 

6. Same — By detective agency. See Civil Officers, 2; Deserters, 2. 

7. Civil authorities— Authority to arrest deserters. See Deserters, 2. 

8. Deserter's releases. See Deserters, 21-23. 

9. Detective agency— Arresting deserters. See Civil Officers, 2: Deserters, 2. 

10. Discharge — Where a man has deserted and continued in desertion until a date sub- 

sequent to the expiration of his enlistment, the department does not consider it neces- 
sary that he be given a discharge of any character, unless pursuant to sentence of court- 
martial, particularly as this would entitle the man to " transportation in kind and 
subsistence from the place of his discharge to the place of his enlistment," etc. (R-4442 
(6)), and thus involve unnecessary expense to the Government. File 26516-214, 
Sec. Navy, July. 22, 1916. 

11. Effects of deserters— Disposition of— Wnere an enlisted man (ship's tailor) bought 

sewing machines, etc., from his predecessor and later deserted, the transaction being 
"an absolute sale on credit and not a conditional sale," the transaction passed com- 
plete title in said property to the aforesaid purchaser. The seller's status in the matter 
is, therefore, that of a creditor of the purchaser to the extent of the unpaid balance due 
on the sale, but the seller retains no legal title in the property sold. It follows from the 
foregoing that the sewing machines, etc. , may legally be disposed of in accordance with 
1-4721, the same as any other effects which belonged to the deserter (purchaser) at the 
time of his desertion. 

The provisions of 1-4721 may be waived within the discretion of the department in 
order that an opportunity may be afforded the seller to institute civil proceedings for 
the purpose of securing judgment against the purchaser for the balance alleged to be 
due, and to enforce such judgment against the property which was the subject matter 
of the sale by him to the purchaser, and such action may be taken upon the approval 
of the Secretary of the Naw. File 26516-162, J. A. G., Dec. 8, 1914; C. M. O. 6,~1915, 9. 
See also File 1317-01, Sec. Navy, Mar. 27, 1901. 

12. Same— The offense of desertion 'per se entails the loss of all pay due at the time of 

desertion, and sale of effects of the deserter, but when a man is net found guilty of 
desertion, or guilty of absence without leave, he should make claim to the Auditor for 
the proceeds of the sale of his effects. File 4620-97. 

13. Enlistment of— Never tried by court-martial— A private served in the Marine Corps 

over a year; deserted, and thenextdayfraudulentlyenlistedin the Army; received an 
honorable discharge therefrom and then, after his enlistment in the Marine Corps had 
expired, presented himself for reenlistment in the Marine Corps. Advised, That as 
this man was of mature age when he deserted from the Marine Corps, that he had 
been serving over a year, that he had fraudulently enlisted in the Army the day after 
deserting, and that as he stated he had no reason for deserting from the"Marine Corps, 
it would be a bad precedent for the department to condone the offenses committed 
and reenlist a man who was guilty of the serious offense of desertion and the more 
serious offense of fraudulent enlistment which involves perjury in this case, par- 
ticularly as no extenuating circumstances appear, in view of the age, length of service, 
and statement that he had no reason for deserting from the Marine Corps. File 14535- 
1088, J. A. G., Nov. 14, 1911. See also Desertion, 114. 

Section 1420, R. S., prohibits the enlistment of deserters at large as well as con- 
victed deserters. Accordingly held that the fraudulent enlistment of a deserter (prior 
to Aug. 22, 1912) from the Marine Corps who had never been convicted of desertion 
was void ab initio and that he could not leeallv be retained in the service. However, 
a pardon would remove the disability andpefmit of his reenlistment. File 7657-132, 
J. A. G., Feb. 17, 1912. [But see Deserters, 15.] 

14. Same — With respect to an unconvicted deserter (who had never been tried) enlisting in 

the National Guard, this is a matter within the jurisdiction of the State authorities, 
and the Navy Department is unable to answer such question. File 26282-163:4, Sec. 
Navy, Jan. 6, 1916. 



DESERTERS. 167 

15. Same— Under the act, August 22, 1912, amending R. S. 1420, 1624* article 19, the enlist- 

ment of persons who have deserted from the naval service in time of peace is not, 
prohibited. File 26516-214, Sec. Navy, July 22, 1916. See also File 7657-132, J. A. G., 
Feb. 17, 1912. 

16. Officers— Appointment of deserter ; as. See Desertion, 41. 

17. Pardon — Department's policy to issue only after conviction— A landsman, requested 

granting of pardon, he being in status of desertion, never having been apprehended or 
surrendered himself for trial by court-martial. Held, That while the applicant in this 
case might still be tried for his desertion committed on February 4, 1899, such a course 
would now be inexpedient more than 10 years since the war ended; and that, al- 
though a pardon might legally be issued, it would be contrary to the rules of the De- 
partment of Justice and to the policy of the department so to do. File 26282-68, 
J. A. G., Oct. 6, 1911. See also File 26282-84, Mar. 27, 1912. 

An enlisted man was convicted of "desertion" in 190 5 , served sentence, and in pur- 
suance thereof was dishonorably discharged . Thereafter he received a f ul 1 and uncon- 
ditional pardon. Held: By this pardon the offense is obliterated and he is in legal 
contemplation no longer a deserter. His disabilities are removed and, among them, 
that relating to reenlistment in the naval or military service of the United States. He 
is restored to his civil rights, and it is quite within the province of the Navv Depart- 
ment to permit his reenlistment. (Op. Atty. Gen., June 16, 190 .) File 262 2-2. 
IS. Same — In the case of a deserter whose enlistment has expired, but who has not been 
convicted, and whose trial is barred by the statute of limitations, or is for other reasons 
deemed inadvisable, no penalty has been incurred, and accordingly, there is nothing ' 
upon which a pardon could operate, and it would be contrary to the department's 
precedents to recommend a pardon in any such case. File 26516-214, Sec. Navy, 
July 22, 1916. 

19. Same— Where a man was never tried by court-martial for his desertion, and the period 

of limitation has expired, he could derive no benefit from a pardon so far as the deser- 
tion is concerned. His subsequent reenlistment, while fraudulent, is voidable only, 
and does not require action by the President in order to retain him in the service. 
File 26284-42, Jan. 13, 1910. See also File 26516-9, Dec. 1, 1908. 

20. Same — After death of a deserter a pardon can not be issued at request of his repre- 

sentatives. File 3846-98, June 10, 1898. See also Pardons, 11. 

21. Releases — A so-called "deserter's release or other equivalent paper" should not be 

issued to deserters at large who are not amenable to trial by court-martial. The 
practice of granting deserter's releases was never required or authorized by any law and 
has been discontinued. There appears no good reason why naval offenders whose 
trials are barred by the statute of limitations should be treated otherwise than is done 
in the cases of offenders in civil life. Where the proper civil officer decides not to bring 
an offender to trial because of the statute of limitations, there is no practice, as far as 
the department is aware, of issuing to such offenders a criminal's release or similar 
document, nor of obtaining for him an executive pardon. In naval cases it should in 
general be ascertained by the proper administrative officer, the same as would be done 
by the proper officer in civil life, whether or not there is reasonable prospect of securing 
conviction before an accused person is brought to trial, and where it appears reasonably 
certain that a prosecution can not successfully be maintained for any reason, either on 
account of the statute of limitations or otherwise, it should not be instituted, as such 
action would merely involve expense to the Government without return. Nor would it 
seem ordinarily that a trial should be had merely as an accommodation to a self-confessed 
violator of the law, or one whose guilt seems clearly apparent, and who desires to have 
the matter disposed of without substantial punishment, but with a view to paving the 
way for ultimate pardon or other benefit to himself. Accordingly, in naval cases, as in 
civil life, where it is decided by the proper officer not to bring the accused to trial, this 
should be an end to the matter in so far as pertains to t he duties of such officer: and the 
future status or movements, or peace of mind of the offender who has thus escaped the 
legal penalty prescribed for his oil'ense can hardly be regarded as a matter of official 
concern to the Government. File 26516-214, Sec." Navy, .Inly 22, 1916. 

Department in refusing to give "an official order of release Iron t he penalty of deser- 
tion" stated that "this department is not disposed to give any consideration what- 
ever to the case," and the "practice of issuing the so-called 'deserter's release' has 
been discontinued." File 26->:?9-74S, J. A. G., Oct. 7, 1916. 

The above decision overrules File 26510-138, Sec. Navy, July 14, 1914. 



168 DESERTERS. 

22. Same — There is no law o: regulation which authorizes the issuance of a so-called 

"deserter's release " or equivalent paper to deserters from the Navy in any case. It 
remains for the court to decide in every case whether trial is effectually barred. File 
26516-206, J. A. G., Mar. 29, 1915. See also File 26516-47, J. A. G., May 18, 1911. 

23. Same— Held: That a "deserter's release should not be issued to a man who deserted 'in 

time of war.'" File 26516-47, J. A. G., May 18, 1911. See also Deserters, 21, 22, 
holding that the issuance of " deserter's releases " is discontinued in all cases. 

24. Restoration to duty— Restoration to duty of a man convicted of desertion committed 

prior to the passage of the act of August 22, 1912 (37 Stat., 356), does not have the 
effect of remitting his disaoility resulting from conviction of desertion. (See C. M. O. 
27, 1915, p. 7.) File 9212-59, Sec. Navy, Aug. 26, 1915; C. M. O. 29, 1915, 6. 

25. Reward. See Rewards. 

DESERTER'S RELEASES. See Deserters, 21-23. 

DESERTION. 

1. Abandonment of naval service or pending contract— The intent of the accused 

permanently to abandon naval service or pending contract of enlistment is impliedly 
alleged and must be proved. C. M. O. 10. 1911, 5-7. 

2. Absence — Of long duration creates presumption of specific intent to desert. See 

Desertion, 62-64. 

3. Same— Duration or period of. See Absence, 10,11; Desertion, 99. 

4. Absence of ten days — Evidence that accused was granted liberty and failed at the 

expiration thereof, and after a lapse of ten days he was declared a deserter is not suffi- 
cient to prove " Desertion." C. M. O. 30, 1910, 6. See also Desertion, 38. 

5. Absence without leave — Both "Desertion" and "Absence from station and duty 

without leave " should not be charged for same period of unauthorized absence. C. M. 
O. 49, 1910 15-16; 5, 1914, 7. 

6. Same — Finding of "Absence from station and duty without leave" on a charge of 

" Desertion" is an acquittal of the charge of " Desertion." C. M. O. 17, 1910, 9. 

7. Same— "Desertion" includes the lesser offense of unauthorized absence. C. M. O. 38, 

1892; 93, 1893; 96, 1893; 51, 1894, 2; 14, 1895, 2; 121, 1896, 1-2; 140, 1896; 158, 1897, 2; 
49, 1910, 15-16. 

8. Same — Accused charged with "Desertion" may be found guilty of "Absence from sta- 

tion and duty without leave," but the converse is not true. S. C. M. Rec. (1898), 
23269, May 12, 1898. 

9. Acquittal of— Is also acquittal of absence without leave, and when approved entitles 

accused to pay during period of unauthorized absence. C. M. 0. 14, 1914, 4. See also 
Pay, 1,2; C. M. O. 17, 1910, 8-10. 

10. Acts of accused— During unauthorized absence mav create a presumption of specific 

intent to desert. C. M. O. 29. 1914, 9; 41, 1914, 3. See also Desertion, 62. 

11. Address— Change of address of an absentee without notice to naval authorities mav 

lead to a presumption of specific intent to desert. C. M. O. 29, 1914, 9. 

12. Aiding— A civilian purchasing the clothing of an enlisted man of the naval service for 

the purpose of aiding that person in an attempt to desert would be liable to prose- 
cution for such aid given. File 26516-49, J. A. G., Tune 13, 1911, p. 9, quoting R. S. 
1553, 5455, act of March 4, 1909 (Criminal Code, 35 Stat. 1097, 1153); Kurtz v. Moffitt 
(115 U. S. 502). 

13. "Animus non revertendi"— Definition. See Words and Phrases; Desertion, 24. 

14. Same — Proof of by documentary evidence. See Certificates, 3-5; Descriptive 

Lists, 1, 3, 4; Reports of Deserters Received on Board; Service Records. 

15. Same— The question of animus non revertendi must, of necessity, alwavs be a conclu- 

sion from certain facts, and is for the court to determine from all the evidence in the 
case. C. M. O. 31, 1915, 15. 

16. Army— Fraudulent enlistment as a proof of "Desertion." C. M. O. 23, 1910, 8. 

17. Same — Specification in proper cases should allege date on which identified while serv- 

ing in Army. See Army, 9. 

18. Arrest of deserters. See Deserters, 2-6. 

19. Attempting to desert— Enlisted men charged with. See Attempting to Desert, 1. 

20. Same— Accused should not be charged with both "Attempting to desert" and "Ab- 

sence from station and duty without leave" for same period of unauthorized absence. 
See Attempting to Desert, 2. 

21. Cause of. See Desertion. 



DESERTION. 169 

22. Charge of— The circumstances under which a man absented himself from his station, 

the condition of his accounts and outfit, and his own statement, if he has any to make, 
are pertinent to the question whether or not he should he charged with "Desertion." 
File 6598-97, Dec. 31, 1897. 

23. Citizenship— Prior to the act of August 22, 1912 (37 Stat., 356)— A man who forfeited his 

rights of citizenship by reason of conviction of desertion from the naval service, can 
have those rights restored only by the President or Congress. Whether or not a man 
who has deserted from the naval service is "free from law after a certain period," 
depends upon the facts of the particular case, and would strictly be a question for 
determination by the court-martial in the event that the offender should be brought 
totrial. (See CM. 0.27, 1913, p. 13.) File 26516-183, J. A. G., July 29,1915; C. M. O. 
27, 1915, 7. See also File 26507-117, J. A. G., Mar. 5, 1913. 

24. Same — The following decisions of the department indicate how serious the offense of 

"Desertion" was considered prior to the enactment of the act, August 22, 1912 (37 
Stat., 356): 
"Convicted deserters are by law incapacitated from holding any office of trust or 

grofit under the United States or from exercising any rights of citizens thereof." 
. M. O. 49, 1910, 16; 14, 1910, 7; 26, 1910, 4; 5, 1911, 6; 2, 1912, 3. 

This statement is printed on Court-Martial Orders prior to Court-Martial Order No. 
23, 1912, dated August 1, 1912. The act of August 22, 1912 (37 Stat., 356), amended 
the above provision of sections 1996, 1998, of the Revised Statutes, so that it should 
not apply in time of peace. (Navy Regulations, 1913, R-3644.) 

Accused convicted of "Desertion" and among other things sentenced to dishon- 
orable discharge. Convening authority approved the proceedings, findings, and 
sentence, but remitted the dishonorable discharge. The department remarked: "The 
action of the convening authority in remitting the dishonorable discharge would have 
the effect of restoring the accused to duty upon the expiration of his period of confine- 
ment, and is not sanctioned by law. Sections 1996 and 1998 of the Revised Statutes, as 
set forth in article 829 of the Navy Regulations [Navy Regulations, 1913, R-3644], 
provide that men who have been convicted of "Desertion" are forever incapable of 
holding any office of trust or profit under the United States, or of exercising any rights 
of citizens thereof, and it is therefore illegal for a man who has been so convicted to be 
reinstated in the naval service." C. M. O. 49, 1910, 16. See also File 4817-04; 7066-04. 

It has been noticed by the department, in reviewing the records of proceedings of 
general courts-martial, that the sentences adjudged in the cases of men found guilty of 
" Desertion " (or who have been previously convicted of that offense and subsequently 
fraudulently enlist) sometimes do not include dishonorable discharge from the service. 

Inasmuch as conviction of " Desertion " carries with it the incapacity for holding any 
office of trust or profit under the United States, or for exercising any rights of citizens 
thereof, it necessarily follows that such a person can not be retained in the United 
States naval service; the sentences of general courts-martial should, therefore, in all 
such cases include dishonorable discharge therefrom. Sees. 1996, 1998, R. S.; Navy, 
Regulations, 1909, R-829 [Navy Regulations, 1913, R-3644]. 

Conviction of the charge of "Desertion" carries with it independently of the punish- 
ment which may be awarded by a naval court-martial, certain legal consequences, 
such, for example, as the forfeiture of the rights of citizenship and the incapacitv to 
hold office under the United States, et cetera, in view of which the department is of 
opinion that courts-martial should be A-ery careful in finding an accused party guilty 
of desertion unless the animus non revertendi, the intention permanently to abandon 
the naval ser. fee, is shown beyond a reasonable doubt. C. M. O. 55, 1897, 2. See also 
C. M. O. 36, 1901, 2; File 4496-66, Aug. 30, 1907; 4496-69, Aug. 30, 1907. 

The accused enlisted in the U. S. Army on November 21, 1899 and was discharged 
therefrom with character "excellent" upon the expiration of that enlistment ;"he 
reenlisted on November 21, 1902, and on December 1, 1905, was dishonorablv dis- 
charged by sentence of a general court-martial. (The records of the department 'show 
that he was tried and convicted of desertion.) He enlisted in the Marine Corps on 
February 13, 190R, concealing the fact that he had been dishonorablv discharged from 
the Army, and though this fact was later brought to the knowledge of the officers of 
that corps under whom he was serving, no act ion appears to have been taken, but the 
accused was permitted to serve out his enlistment, receiving an honorable discharge 
therefrom on February 12, 1910, as a first sergeant, with character "excellent," and 
recommendation for a good-conduct medal. lie then reenlisted in the Army on 
February 14, 1910, and on March 29, 1910, was discharged '•without honor" for fraudu- 
lent enlistment. He then reenlisted in the Marine Corps on Juno 1 !, 1 9 1 , at which 
time he concealed his prior discharge "without honor" from the Aimv. 



170 DESERTION. 

In view of the fact that the records of the department show that the accused was 
duly tried and convicted of desertion and was dishonorably discharged from the 
Army therefor, which conviction, according to section 199G, Revised Statutes, prohib- 
its such a person from "holding any office of trust or profit under the United States," 
the department can not exercise such clemency as would permit the retention of this 
man in the service, but in consideration of the unanimous recommendation of the 
members of the court to clemency based upon the accused's previous service in the 
Marine Corps, and the evidence as to character given by witnesses, the confinement, 
with corresponding forfeiture of pay and allowances, were remitted, and it was di- 
rected that the accused be released from arrest and discharged from the service in 
conformity with the remaining terms of his sentence. C. M. O. 26, 1910, 4. 

An accused was tried by general court-martial (fleet case), found guilty of "Deser- 
tion" and the proceedings, findings, and sentence were approved by the convening 
authority who, in view of the unanimous recommendation of the members of the 
court to clemency, reduced the period of confinement, with corresponding loss of pay, 
to six months and remitted the dishonorable discharge. 

The action of the convening authority in this case in approving the finding and 
remitting the dishonorable discharge should not be confused with that of a convening 
authority in withholding action on a desertion case, and restoring the accused to duty. 
In the latter case, there being no approval, of the finding of the court by the convening 
authority, the proceedings are not complete and the accused is not treated as a con- 
victed deserter. [Kurtz v. Moffitt (115 U. S., 487), citing with approval Winthrop's 
Dig. 1880, p. 225; U. S. v. Kelly, 82 U. S., 34; 20 A. and E. Encv., 2d ed., 656; In re 
Esmond, 5 Mackey (D. C), 64; 19 Op. A. G. 107; Winthrop's Mil. Law, etc., 663.] 

As, in view of the statutes above referred to, it would be illegal for a convicted 
daserter to be reinstated in the service, except by Executive pardon, the department 
approved the proceedings, findings, and sentence of the court and the action of the 
convening authority thereon, except as to remitting the dishonorable discharge; dis- 
approved the action of the convening authority in remitting the dishonorable dis- 
charge, and directed that the accused be discharged at the expiration of his period of 
confinement, as mitigated, "by reason of his conviction as a deserter." C. M. O. 
5, 1911, 6. 

25. Same— Section 1998 of the Revised Statutes, as amended by act Aug. 22, 1912 (37 

Stat. 356), provides "that the loss of rights of citizenship heretofore imposed by law 
upon deserters from the military or naval service may be mitigated or remitted by the 
President where the offense was committed in time of peace and where the exercise of 
such clemency will not be prejudicial to the public interests." File 9212-59, Sec. 
Navy, Aug. 26, 1915. 

26. Same— A man who forfeited his rights of citizenship by reason of conviction of " De- 

sertion" from the naval service can have those rights restored only by a presidential 
pardon. Whether or not a man who has been convicted of "Desertion" from the 
naval service is "free from law after a certain period," depends upon the facts of the 
particular case, and would strictly be a question for determination by the court-martial 
in the event that the offender should be brought to trial. File 26516-183, J. A. G.. July 
29, 1915; C. M. O. 27, 1915, 7. 

27. Same — Under R. S. 1996, 1998, convicted deserters were deemed to have voluntarily 

relinquished and forfeited their rights of citizenship, as well as their right to become 
citizens, and were rendered forever incapable of holding an office of trust or profit 
under the United States or of exercising any rights of citizens thereof. File 5460-82, 
J. A. G., June 3, 1916. 

28. Citizenship subsequent to act August 22, 1912 (37 Stat., 356)— Persons who 

desert from the military or naval service in time of war are deemed to have voluntarily 
relinquished and forfeited their rights of citizenship, as well as their right to become 
citizens; and such deserters shall be forever incapable of exercising any rights of 
citizenship. (Sections 1996 and 1998, Rev. Stat. , as amended by act of Aug. 22, 1912, 37 
Stat., 356.) 

29. Same— Under the law sections 1996 and 1998, Revised Statutes, as amended by act of 

Aug. 22, 1912 (37 Stat. 356); Navy Regulations, 1913, R-3644), as it now exists, 
persons who are convicted of "Desertion" from the naval service in time of peace do 
not forfeit their rights of citizenship as was formerly the case. However, persons 
convicted of "Desertion" in time of war, and those who have already forfeited their 
rights of citizenship under the previous laws, can nothave their rights restored without 
being pardoned by the President. File 26516-182, J. A. G., July 28, 1915; C. M. O. 27, 
1915, 7. See also Desertion, 135. 



DESERTION. 171 

30. Civil authorities— Arrest by, as a defense to '-'Desertion." See Absence from Sta- 

tion and Duty After Leave had Expired, 3, 4. 
Arrest of deserters, by civil authorities. See Deserters, 2-6. 

31. Civilians— Enticing, procuring, or attempting or endeavoring to entice or procure 

enlisted men to desert. See Desertion, 12. 

32. Civil War cases— After April 19, 1865. See Mark of Desertion. 

33. Clothing— Condition of, as described in "Repor,t of Deserter Received on Board." 

See Reports of Deserter Received on Board, 4. 

34. Same — Statement of disposal of, in Service Records. See Service Records, 10, 16. 

35. Continuing offense — "Desertion " is a continuing offense. C. M. O. 31, 1910, 5; File 

5256-04. 

36. Conviction of desertion — Effect on citizenship rights. See Desertion, 23-29. 

37. Definition — "Desertion" is unauthorized absence with specific intent permanently to 

abandon naval service or cancel pending contract of enlistment. C. M. O. 49, 1910, 9; 
23, 1910, 7; 41, 1914, 7. 

38. Same — "Desertion," as denned in R-3632(4) is for purpose of entry on record, not for 

guidance of courts-martial. The specification under a charge of " Desertion ' ' alleged 
in part that the accused, having been granted liberty by proper authority at Hong- 
kong, China, well knowing that his ship was on the eve of sailing for Manila, Philip- 
pine Islands, did fail to return upon the expiration of his liberty, and that he surren- 
dered himself on board another ship at Hongkong, China, on the same day, after his 
ship had sailed. 

The closing argument of the judge advocate showed that he misconstrued Article 
E-3832(41 and it is quite probable that a misunderstanding of the true meaning of this 
article caused the charge of desertion to be preferred against the accused in this case. 
The judge advocate argued as follows: " The attention of the court is invited to para- 
graph R-3632, subparagraph (4), U. S. Navy Regulations and Naval Instructions, 
1913, which reads as follows: ' If a person deserts his ship which is about to sail, or 
overstays his leave until after the ship sails, with manifest intention of escaping his 
duty, and delivers himself on board another ship as a straggler, such offense shall be 
considered as desertion.' " Article R-3632(4) must be read in conjunction with Article 
R-3633, and it will then readily be seen that the facts as stated above do not of them- 
selves constitute desertion. Article R-3633 reads as follows: "The provisions of the 
foregoing article are intended for guidance in making the proper entries on the records 
when men absent themselves, but not for the guidance of courts-martial in judicially 
determining whether a man is guilty of desertion." C. M. O. 4. 1906, 1; 25, 1914, 4. See 
also File 8332-98; 1170-01; Desertion, 4. 

39. Same — The word "Desertion" is susceptible of two meanings; that given in the naval 

and military service, meaning the unauthorized absenting himself of a person in the 
service with an animus non revertendi; and that of ordinary usage, defined as the act 
of abandoning or forsaking. C. M. O. 49, 1910, 8. 

40. Dishonorable discharge. See Dishonorable Discharge. 

41. Disabilities of convicted deserters, removal of — The disabilities imposed upon con- 

victed deserters by sections 1996 and 1998 of the Revised Statutes may be removed 
by Executive pardon (26 Op. Atty. Gen. 617). The form which such pardon mar as- 
sume is not at all important (27 Op. Atty. Gen. 178). It has repeatedly been decided 
that the promotion of an officer under charges or serving sentence is a constructive 
pardon. (See 6 Op. Atty. Gen. 123; 4 Op. Atty. Gen. 8, 124; 8 Op. Atty. Gen. 237.) 
By a liberal construction it has been held by the department that the "appointment 
of a person by the President, with the advice and consent of the Senate, as a commis- 
sioned officer in the Navy (chief pay clerk), which appointment was mule with knowl- 
edge disclosed by department's records that he was a convicted deserter (prior to act 
of August 22, 1912), similarly operated as a constructive pardon. This latter case is 
to be distinguished from one in which an officer deliberately conceals the disabilities 
rendering him ineligible for appointment. File 5460-S2, J. A. G. , June 3, 1916. 

Restoration to duty of a man convicted of desertion committed prior to the passage 
of the act of August 22, 1912 (37 Stat., 356)j does not have the effect of remitting his 
disability resulting from conviction of desertion. (See C. M. O. 27, 1915, p. 7.) Tile 
9212-59, Sec. Navy, Aug. 26, 1915; C. M. O. 29, 1915, 6. 

42. Disappearance of officers. See Desk rti on, 89-91. 

43. Documentary evidence— In proving " Desertion." C. M. 0. 110, 1896, 3; 49, 1915, 14- 

15. See also Certificates, 3-5; Descriptive Lists, 1,3,4; Reports of Deserters 
Rbceived on Board; Service Records. 

44. Drunkenness— As a defense. See Drunkenness, 29. 



172 DESERTION. 

45. Duration— Or period of absence. See Absence, 10, 11; Absence from Station and 

Duty Without Leave, 29; Charges and Specifications, 92; Desertion, 99 

46. Effects of deserters— Disposition of. See Deserters, 11, 12. 

47. Enlistment record— Use of, as evidence. See Service Records. 

48. "Enticing others to desert" —Is an offense. G. C. M. Rec. 23280; File 26251-6552. 

43. Same — Chargeable under "Conduct to the prejudice of good order and. discipline." 
C. H. O. 49, 1914, 2, overruling C. M. O. 2, 1908, 2. 

50. Escape and absence— As proving intent. C. M. O. 61, 1894, 2. See also Escape,2. 

51. Fraudulent enlistment— As a proof of " Desertion. " C. M. O. 37, 1909, 5-7; 23, 1910, 

8; 28, 1910, 8-9. See also C. M. O. 22, 1904, 2; Fraudulent Enlistment, 37,38. 

52. Finding, "Guilty but without criminality" — A finding of the specification '-proved 

but without criminality" is inappropriate, as the specific intent permanently to 
abandon the service or pending contract oi enlistment is impliedly alleged and must 
be proved. C. M. 0. 10, 1911, 5-7. See also C. M. 0. 11, 1905, 2; Findings, 69. 

Eliminations in finding so as not to support charg? of "Desertion." C. M. O. 28, 
1904, 3. 

53. Foreign countries — Apprehension of a man who deserted from a naval vessel while 

in a Japanese port. File 27403-132. 

54. Gravamen — Of the offense — The essence of the offense of "Desertion" is the intention 

of the accused permanently to abandon the naval service. C. M. O. 20, 1899, 1. See 
also CM. 0.31,1915,15. 

55. "Guilty in less degree than charged"— Court should reject this plea. See Guilty 

in a Less Degree than Charged, 9-11. 

56. 1-4893. See Naval Instructions, 1913, 1-4893. 

57. Influencing others to desert— Is an offense. G. C. M. Rec. 23280. 

58. Intent — The specific intent as well as unauthorized absence must be proved. See 

Desertion, 65. 

59. Same— If the accused at any time during his unauthorized absence had the intent per- 

manently to abandon the naval service or to cancel pending contract of enlistment, 
that is ail that is necessary to establish his guilt, and it is immaterial whether the 
intention was formed at the time of leaving the ship or station or at a subsequent date. 
(C. M. O. 30, 1910, p. 10; 5, 1912 p. 4). C. M. O. 29, 1914, 9. See also Desertion, 72. 

60. Same — Escape and unauthorized absence as affecting the specific intent. CM. O. 61, 

1894, 2. See also Escape, 2. 

61. Same— File 26251-4200, Sec. Navy, Jan. 25, 1911. 

62. Same — The specific intent may be inferred, and generally must be, from the acts of the 

accused — circumstances and duration of unauthorized absence, or fact he was appre- 
hended and forcibly returned, or other circumstances of the case. C. M. O. 42, 1909, 5; 
28, 1910, 6; 30, 1910, 10; 14, 1913, 3, 4; 16, 1913, 3, 5; 22, 1913, 3-4; 29, 1914, 9; 41, 1914, 3. 

63. Same — Long period of absence raises a presumption of specific intent permanently to 

abandon the naval sen/ice, which presumption can only be dispelled bv a reasonable 
explanation thereof. C. M. 0. 39, 1901, 2; 29, 1914, 9; 76, 1901. Seealso Desertion, 67. 

64. Same — The specific intent is to be inferred from the accused's acts and not from what 

he may state on the witness stand. C. M. O. 42, 1909, 5. 

65. Same — latent permanently to abandon the naval service or term in ate pending con- 

tract of enlistment must be proved as well as the unauthorized absence. C. M. O. 93, 
1893; 96, 1893; 51, 1894, 2; 14, 1895, 2; 121, 1896, 1-2; 140, 1896; 55, 1897, 2; 158, 1897, 2; 
38, 1892. 

66. Same— In a case where the accused was found "guilty" of "desertion," the depart- 

ment stated in part: " Owing to the insufficiency of the evidence adduced at the trial 
to establish an intent to abandon the service, the proceedings, finding, and sentence" 
are disapproved. C. M. O. 126, 1902; 166, 1902. 

67. Same — "Duration of the absence" of accused is especially material, but time of absence 

alone is not conclusive proof of such intent. C. M. O. 158, 1897, 1. See also Deser- 
tion, 63. 

68. Same— The record in the case contained no direct evidence showing the intent essen- 

tial to the offense of desertion. The circumstances attending the offense, however, as 
developed on the record, were such as to establish that intent, by necessary implica- 
tion, beyond a reasonable doubt. The accused left a liberty party, while on shore at 
Nagasaki, Japan, and made his way to the United States, surrendering himself finally 
at San Francisco. If he had not intended to abandon the naval service he could, under 
ordinary circumstances, have surrendered himself on board some United States 
vessel on the Asiatic Station, llis coming home was in itself, being unexplained, an 
incriminating circumstance. 

The period of absence in his case was about eleven months. Such a long absence 
remaining unexplained necessarily tends to establish the intention to desert. 



DESERTION. 173 

The terms of the statement offered by the accused were guarded, and contained no 
explanation whatsoever of his long absence, or of the occasion of his return to the 
United States. 

"While the greatest care is always necessary in dealing with a charge of "Desertion" 
supported only by circumstantial evidence, the present case appeared to be one in 
which a number of separate facts, none of- which would necessarily be conclusive 
when considered alone, unite in relieving the case from uncertainty, and taken together 
established the offense as charged. C. M. O. 76, 1901, 1. 

69. Same — The department stated that in order to establish the commission of the specific 

offense of "Desertion," both the fact of unauthorized absence and the intent perma- 
nently to abandon the service must be proved. Also: " It is presumed that the judge 
advocate introduced all the evidence which was available in order to establish the 
intent of the accused permanently to abandon the service. The fact of his having 
left the ship without permission, the duration of his absence, and his reporting in 
civilian's clothes furnish presumptive evidence of such intent, but this presumptive 
evidence is negatived by the testimony of the accused himself in which he denies 
that he at any time intended to desert, by the fact that he placed himself in communi- 
cation with the Bureau of Navigation during his absence, and that he voluntarily 
delivered himself up. 

" From a careful consideration of the entire evidence in the case," "the department 
is of opinion that the intention of" the accused "permanently to abandon the service 
has not been shown beyond a reasonable doubt, and that, therefore, the benefit of 
such doubt should be given to him." C. M. O. 14, 1895, 2. 

70. Same— It appeared "from an examination of the record of the general court-martial in 

the case of 'the accused' that he was granted five days' leave of absence" in August; 
remained absent about five months; "that he went to Chicago and obtained work on 
the lakes and railroad, and that he did not communicate with the naval authorities 
relative to his whereabouts, which facts would seem to establish the intent of the 
accused at the time permanently to abandon the service, and would therefore sustain 
the charge of 'desertion,' upon which he was tried. The court, however, dealt 
'leniently with the case and' gave the accused the benefit of the doubt and found 
him guilty of 'absence without leave.' " C. M. O. 33, 1901, 1. 

71. Same— In order to establish the commission of the specific offense of "Desertion," 

both the fact of unauthorized absence and the intent permanently to abandon the 
service or, at least, to terminate the pending contract of enlistment, must be proved. 
(Navy Regulations, 1913, R-746. ) .C. M. O. 49, 1910, 8-9, 11; 23, 1910, 6; 30, 1910, 10; 
10, 1911, 6; 5, 1912, 4; 16, 1913, 5; 22, 1913, 3; 41, 1914 3. 

72. Same— The accused, charged with "Desertion," wasfound guilty of "Absence without 

leave. " The court was reconvened to reconsider, respectfully adhered to its original 
finding and stated in part that the accused left his ship while drunk, which precluded 
any fixed intent at that time permanently to abandon the service. The department 
held that "it is immaterial whether the intent permanently to abandon the service 
exists at the time of the leaving or at some subsequent date. The law judges a man's 
intentions from his actions, and the fact that" the accused, "although drunk at the 
time of leaving, failed to communicate with and remained absent from the service 
for a period of nearlv two months is good presumptive evidence as to his intentions to 
desert." C. M. O. 30, 1910, 10. See also Desertion, ,59. 

73. Same — la reconvening a court to reconsider its finding the department held in part: 

" From the testimony introduced in this case it appears that the court had before it the 
following facts: That the accused deliberately absented himself from his station and 
duty without authority: that his unauthorized absence covered a period of more than 
five months; and thafhe surrendered in civilian clothing. " The " voluntary return 
of a deserter, even within a reasonable time, does not in itself rebut the presumption 
of guilt arising from his previous act. In the absence of a reasonable excuse in the case 
of unauthorized voluntary withdrawal from the service, the intent permanently to 
abandon it must be inferred, and it would be more reasonable to so infer than to 
presume that an unauthorized voluntary lengthy absence indicated a return at some 
future date. C. M. 0. 16, 1913, 5. 

74. Same— The specification on a charge of "Desertion" alleged an absence of more than 

three years. The court found the accused guilty of absence without leave. In return- 
ing the record to the court for revision the department slated: " From his own testi- 
mony it would seem that the circumstances attending the movements of the accused 
during his unauthorized absence indicate his purpose to sonarate permanently from 
the service, which is not overcome by the fact that, after an unauthorized absence of 
more than three years, he surrendered himself. 



174 DESERTION. 

"A man who separates himself from the service with the intent to desert might, 
subsequently, fincf it more desirable, for various reasons, to return, and the mere fact 
that an absentee surrenders himself is not in itself sufficient evidence that he did not 
intend to desert, but it is a fact to be considered with ail of the evidence available in 
the case. 

"It does not appear that, during more than three years, the accused made any 
attempt to communicate with the naval authorities; on the contrary it does appear 
that, although he visited or traveled near to many places where he could have sur- 
rendered himself, he carefully avoided the places where he was well known for the 
reason that be thought he might get 'caught.' " The court in revision revoked its 
former findings and, in lieu thereof, found the specification proved and the accused 
guilty of the charge. C. M. O. 16, 1913, 3. 
75. Same— The specification alleged an unauthorized absence of about eight and one-half 
months. 

The accused left the service at San Francisco, Cal., on June 13, 1912, and testified 
that he left after brooding over the fact that he could not make the "promotion which 
I had hoped at the time of my enlistment. " He further testified as follows: "I realized 
that I had made a serious mistake — in fact played the fool— and desired to come back 
and, if possible, secure reinstatement in the service in order that I might redeem 
myself. " 

"The foregoing testimony appears to be a tacit admission by the accused of his 
guilt, and the mere fact that he eventually surrendered himself is not in itself suffi- 
cient evidence that he did not intend at some period of his unauthorized absence to 
desert." 

" The offenses of absence over leave and absence without leave are offenses that often 
spring out of the improvidence and thoughtlessness which were formerly considered 
incident to the habits and character of sailors. The accused in this case testified that 
the reason he did not return at the expiration of his liberty was because he had been 
brooding over the fact that he could not make the promotion he had hoped for at the 
time of enlistment. It therefore appears that he left the service because of resentment, 
and his testimony in this respect appears to be conclusive evidence that his unauthor- 
ized absence was not caused by thoughtlessness. 

"The elements of desertion are unauthorized absence and intent to permanently 
abandon the service. The intent may be inferred, not alone from the unauthorized 
absence, but from the circumstances of the absence and the duration of same. 

" The accused admitted a reason for his abandonment of the service, and by his long 
unauthorized absence, by which he avoided serving nearly one-fifth of his total term 
of enlistment, he showed a contempt for the obligation of his sworn contract and 
willful intention of avoiding his duties. With these circumstances before it the court 
should have required, to rebut the presumption of desertion, a plausible reason, 
thoroughly corroborated, for the long absence of the accused." 

In this case the court first found guilty of absence without leave, but in revision 
revoked its former finding and found the" accused guilty of the charge. C. M. 0. 22, 
• 1913,4-5. 

76. Same— The department in one case stated: "If, in the opinion of the court, the ac- 

cused did not at any time during his unauthorized absence intend permanently to 
abandon the service, it becomes its duty- to find the accused guilty in a less decree than 
charged, guilty of" "Absence from station and duty after leave had expired:" or 
"Absence from station and dutv without leave." C. M. O. 5, 1912, 4. 

77. Same— The general court-martial*before which a private United States Marine Corps, 

was tried on the charges of "Desertion" and "Fraudulent enlistment." found the 
specifications of the charges "proved, but without criminality," and acquitted him of 
said charges. 

A finding of "proved, but without criminality," while not to be encouraged in any 
case, is particularly inappropriate upon such a charge as that of desertion, in which a 
specific intent forms an essential ingredient of the offense and must be proved. Upon 
a charge like that of absence without leave, Avhere it is not necessary to allege or prove 
any specific intent, it may very well happen that all the facts alleged in the specifica- 
tion may be found proved and yet the accused be wholly free from blame, the absence, 
for example, being entirely involuntary on his part. But this does not apply to the 
case of desertion, in which a specific intent to abandon the service is impliedly alleged 
and must be proved. 

There was no conflict in the evidence as to the facts in this case, from which it 
appeared that he had been regularly enlisted in the United States Marine Corps, and 



DESERTION. 175 

executed the required oath; that he was ially cognizant of what was occurring, raising 
his right hand while the oath was read to him, and understanding that he "was sworn 
into the Marine Corps; " that when sent home by the recruiting officer he was told "to 
come back the next day," and that instead of returning he "received an offer of a good 
job and went to work." 

The allegation that the accused did "desert from the marine recruiting office" and 
"from the United States Marine Corps," involves an allegation of the two elements 
necessary to constitute desertion, i. e], (a) an absence without authority, and (b) an 
intention to abandon the naval service; and in finding the specification of the first 
charge (desertion) proved the court accordingly found that the accused was absent 
from the Marine Corps without authority during the period specified, with the inten- 
tion of not returning. 

Upon the question of criminal intent, it is stated in Clark's Criminal Law, page 50, 
that ' ' Intent does not necessarily involve intention to do a criminal act; but intention 
to do a criminal act is ordinarily sufficient to constitute criminal intent. In other 
words, where an act is prohibited on pain of punishment, criminal intent is nothing 
more than the intent to do the act, provided the wrongdoer is a person capable of enter- 
taining a criminal intent, and acts without justification or excuse." 

Where, therefore, as in this case, it appears that the accused "was fully conscious of 
what he was doing, in the full possession of his reason, and not acting ignorantly or 
by mistake" of fact, the general criminal intent necessary to conviction is clearlv 
established. (File 26251-3252, J. A. G., April 28, 1910.) However, in the case of 
desertion, a specific intent is an essential ingredient of the offense. " When, by the 
common law or by statute, a specific intent is essential to a crime, the specific intent 
must exist and must be proved." (Clark's Cr. L., p. 51.) The intent necessary to 
constitute desertion is merely "the intention of not returning;" in other words, "a 
deliberate purpose not to rejoin the military service, but to abandon the same alto- 
gether, or at least to terminate or dissolve the existing military status or obligation, 
i. e., the pending contract of enlistment." (Winth. Mil. Law, p. 985.) The accused 
in this case admitted that he had a "deliberate purpose not to rejoin the military 
service, but to abandon the same altogether." His only defense was that he did not 
consider that the oath taken by him was "binding; " that he did not think that his 
time had started until he "was sent away, got into uniform, and was on duty;" and 
"that he thought it was like getting a job somewhere and leaving it for a better one if 
it offered itself." Even though these statements of the accused be accepted, they 
indicate rather an ignorance on his part of the legal consequences of the transaction in 
which he had just engaged, and not an ignorance or mistake of fact " It is the settled 
rule that everyone is presumed to know the law, and that ignorance thereof furnishes 
no exemption from criminal responsibility. This rule was even applied in the extreme 
case of violation of a statute by a person who was at sea when it was enacted, and when 
he violated it, and who could not have learned of it. Even foreigners coming into a 
country, and ignorantly violating its laws, are liable, though the act may hot be a 
crime in their own country. Nor is positive belief that an act is lawful an excuse." 
(Clark's Cr. L.,p. 80.) 

Certain exceptions exist to this principle which do not, however, apply to this case. 
The wisdom and necessity of the rule, which has existed since the earliest days of our 
system of law, have been too often demonstrated for a departure therefrom to' be sanc- 
tioned by the department. 

The department returned the record of proceedings in this case to the court with the 
direction that the court reconvene for the purpose of reconsidering its findings. C. M. 
0. 10, 1911, 6-7. See also Desertion, 110. 
78. Same— Accused charged with "Desertion" was found guilty of absence without leave. 
The department in reconvening the court stated as follows: 

"By the accused's own testimony it appears that he was absent from May 13, 1909, 
until October 27, 1909— a period of over five months; that he took passage to a distant 
point; discarded hisuniform, and procured plain clothes; obtained employment while 
absent; that he was arrested, and his return to the service forced; and that he did not 
communicate with the naval authorities during his absence. 

"The testimony of the accused as to his intentions to return is wholly Unsupported 
by other corroborative evidence, and should, according to authorities, under such 
conditions not be accorded entire credit. (Winthrop's Military Law, 2d ed>, pp. ,344 
and 545, under 'Testimony of the accused.') 

50756°-17— 12 



176 DESERTION. 

"The truthfulness of the most important part of the evidence given by him on the 
stand is, because of subsequent events, much to be doubted. 

" It is but a reasonable supposition that, had he retained his uniform, as testified to, 
and started from home intending to return to the service, he would certainly have 
brought it back with him. 

"Again, a man's intentions are to be inferred from his acts. 

"There are no means of estimating one's intentions by the declaration of an inter- 
ested party in a suit, unless the act done and the means used by the party are such as 
one would naturally use in accomplishing the declared intention; and it does not 
appear from the evidence adduced that the accused ever used any means to communi- 
cate with thenaval authorities , or that he ever performed one act that might lead to the 
supposition that he ever intended to return to the naval service. 

"He was absent a period of five months and fourteen days, during which time he 
failed to communicate in any way with the naval authorities; he took passage to a 
distant point, discarded his uniform for civilian clothes, obtained employment while 
absent, and finally was apprehended and forcibly returned to the service by the civil 
authorities— all of which, in the opinion of the department, conclusively disproves his 
statement as to his intentions." C. M. O. 42, 1909, 5. 

79. Intent to desert— Public statement of an intent to desert in the presence of other 

enlisted men is an offense. G. C. M. Rec. 23280. 

80. Same— A mere declaration made by an enlisted man to another that he intends to 

desert, unaccompanied by any actual attempt to desert, or an attempt to entice, 
influence or procure another to desert, does not constitute an offense. G. C. M. Rec. 
23280. 

81. Letter and indorsements— From Bureau of Navigation as evidence to prove "Deser- 

tion." See Indorsements, 2; Letters, 7. 

82. Limitation of punishment — The increased limitation to punishment for "Deser- 

tion." as set forth in G. O. No. 77, October 5, 1908, is to povern only in those cases 
where the original desertion occurred subsequently to that date. C. M. 0. 47, 1910, 10; 
14, 1910, 7; 15, 1910, 7; 17, 1910, 6. 

"If a man left his station and duty before October 5, 1908, then one year will be 
considered as the limit for confinement, if after October 5, 1908, the increased limit will 
apply." File 26504-29a, Sec. Naw. Nov. 7, 1908. 

Limitation for deserters in case of voluntary surrender. C. M. O. 23, 1910, 4; 30, 
1910, 8. 

Limitation for deserters (in case of apprehension) who have been in service less than 
18 months. C. M. O. 19, 1911, 4. 

The graded limitation to punishment should always be observed. C. M. O. 2, 
1912, 4. 

See Navy Regulations, 1913, R-900. for the present limitation of punishment. 

83. *' Marine Recruiting Office"— Desertion from. See Desertion, 77. 

84. " Mark of Desertion" See Mark of Desertion. 

85. Medals of Honor— When forfeited by desertion. See Medals of Honor, 5. 

86. Midshipmen— Charged with. C. M. O. 28, 1905. 

87. Minor. See Minors, 6. 

88. Money— Release may not be secured through payment of— "Desertion," being a 

statutory offense, this department knows of no way by which persons guilty thereof 
mav secure their release by payment of money. File 26516-180, J. A. G., July 27, 
1915. 

89. Officers— Charged with. C. M. O. 27, 1887, 13; 74, 1S97; File 20251-6278; 26251-7233: 

1; 26283-153: 1, Sec. Navy, Jan. 5, 1911. See also Desertion, 90, 91. 

90. Same— If the department should conclude that the evidence is sufficient to support a 

reasonable inference of desertion , the officer may be entered on the rolls as a deserte r 
If the department concludes that the evidence' indicates death instead of desertion, 
appropriate notation to that effect may be made on the records and his name entered 
in the Navy Register under the heading of "Deaths," with the explanation "(disap- 
peared)," date, and "supposed to be dead." If the department does not wish to 
decide upon the evidence in its possession , whether the officer is dead or in desertion , it 
would be sufficient to enter upon the records after his name merely the word "disap- 
peared." In any event, a successor to such officer could be nominated by the Presi- 
dent and confirmed by the Senate. There is nothing in the law which requires the 
Secretary of the Navy'to declare the officer a deserter, and, even should he take such 
action, the officer could not legally be dropped from the rolls without sentence of 



DESERTION. 177 

court-martial, unless he be superceded bv the appointment of a successor and the 
number of officers in his grade thereby filled. (File 26283-153: 1, J. A. G., Dec. 16, 
1910.) 

In accordance with the foregoing opinion, the department directed, January 5, 1911, 
that the name of this officer be entered on the records of the Bureau of Navigation and 
in the Navy Register, as "disappeared," with the following explanation: "Absent 
without authority since June 6, 1910. Whereabouts unknown." and directed that the 
nomination of a successor be prepared. File 26283-153: 1, Sec. Navy, Jan. 5, 1911. 

91. Same— Declaring an officer a deserter from the Navy does not separate him from the 

service. An officer nominated and confirmed to fill his position does, however. 
Charges and snecifications were preferred against an officer who deserted , at the time of 
desertion, and sent to a permanent general court-martial for trial where they are at 
present awaiting developments. The filling of his place does not divest the jurisdic- 
tion of a naval court-martial to try him upon the charge which had previously been 
preferred, and if the officer is at any time apprehended he may be tried for desertion. 
When apprehended the officer should be immediately served with a copy of the charge 
and specification against him, and notified that be is to be tried by general court- 
martial at the navy yard where the permanent general court-martial is sitting. It is 
desirable that he be tried by this general court-martial and should be transferred there 
when apprehended. The statute of limitations is not involved in this case, inasmuch 
as the charge and specification were preferred by the department, and sent to the gen- 
eral court-martial in ample time to assure his trial whenever he may be apprehended. 
An officer who deserts should be apprehended, if possible, in order to obtain a judi- 
cial decision of value upon the question of naval jurisdiction which would serve as 
definite guide in future cases, and as a deterrent to others who might be inclined to 
follow such acourse. File 26251-6278, J. A. G., Aug. 17, 1915. See also Dismissal, 24. 

92. "Official records"— As evidence in proving "Desertion." C. M. O. 28, 1904, 3-4. 

See also Certificates, 3-5; Descriptive Lists, 1, 3, 4; Official Records, 1; Re- 
ports of Deserters Received on Boaed; Service Records. 

93. Pardon. See Deserters, 17-20; Desertion, 41; Pardons, 2, 11, 37, 40, 52, 54. 

94. Pay— Sentence approved under 1-4893 and G. O. 110. C. M. O. 6, 1915, 15. See also 

Naval Instructions, 1913, 1-4893. 

95. Same — If accused is acquitted of desertion and such acquittal is approved, he is entitled 

to nay during period of unauthorized absence. C. M. O. 14, 1914, 4. See also Pay. 1., 2. 

96. Same-^Forfeiture of pay and allowances by desertion follows from the conditions of 

the contract of enlistment, which is for faithful sen-ice and does not, therefore, extend 
to benefits earned under prior enlistments unless so provided by law. File 26291-23, 
Sec. Navy, Nov. 13, 1909. 

97. Paymaster— Charged with. C. M. O. 27, 1887, 13. 

98. Paymaster's clerk— Charged with. G. O. 143,Oct. 28, 1869; C. M. O. 27, 1887, 13; 

39, 1905, 1; 26, 1912; File 26251-7233:1. 

99. Period of unauthorized absence — The following specification was held to be valid 

by the department: "In this, that on or about the fourteenth day of October, eighteen 

hundred and eighty-eight, the said alias , a private in the United 

States Marine Corps, did , while attached to and serving as such at the marine barracks, 
navy yard, Brooklyn, New York, desert from the said barracks and from the United 
States Marine Corps. " C. M. 0.89,1890. See also CM. 0.22,1915,4; Absence, 10, 11. 
Absence from Station and Duty Without Leave, 29. 

The following specification under a charge of "Desertion" was approved: "In that 
he, the said * * *, did on or about the 2d of July, 1821, desert from the U. S. S. 
Peacock while lying at Washington." This trial took place on board the U. S. frigate 
Guerriere. G. C. M. Rec. 384. 

100. Plea of guilty in a less degree than charged— Save in exceptional cases, a court- 

martial should try the accused for the offense as charged, and a court very properly 
disregards the advice of the judge advocate recommending the acceptance of an ac- 
cused's plea of guilty in a less degree than charged. C. M. O. 29, 1914. 6-7, See also 
Judge Advocate, 123, 124; Guilty in a less Degree than Charged. 11. 

101. Plea, irregular— Accused was charged with " Desertion. " To the specification of the 

charge and thecharge the accused in the fust instance pleaded "guilty in a loss degree 
than charged, guilty of absence without leave." The court having decided not to 
accept this plea it was subsequently modified so far as related to thecharge, to that of 
"not guilty, but guilty of absence without leave. " This action was proper, but the 
accused should, further, have excepted from his plea such words in the specification 
as characterize the offense of desertion, substituting where necessary ''words de- 
scribing the offense actually committed." C. M. 0. 10, 1897, 3. 



178 DESERTION. 

102. Prima facie case — Defined— When the prosecution proves the unauthorized absence 

and the facts of apprehension and delivery of the accused, this is all that is required 
to sustain the charge of " Desertion" in the absence of evidence to the contrary. Or 
if the absence is of such duration or there are such other circumstances as to justify an 
inference that the accused intended permanently to abandon the service or terminate 
his pending contract of enlistment, this is sufficient even though he may have sur- 
rendered. In all these instances the evidence for the prosecution constitutes a prima 
facie case of guilt. C. M. O. 41, 1914, 3. 

103. Same— Prima facie case established, the burden shifts to the accused. C. M. O. 30, 

1910, 10; 10, 1912, 8; 16, 1913, 5; 41, 1914, 3. See also Service Records, 16. 

104. Same — When conclusive— Where a prima facie case of "Desertion'-' has been estab- 

lished, if no defense is offered by the accused, or his defense is not sufficient to rebut 
the evidence of the prosecution'and the natural inference to be drawn therefrom, the 
prima facie case established bv the prosecution becomes conclusive and the accused 
should be found guiltv of " Desertion. " (C. M. O. 30,1910, 10; 10,1912,8; 14, 1913,4; 
16, 1913, 5; 34, 1913, 7; 29, 1914, 8.) C. M. O. 41, 1914, 4. Scealso Service Records, 16. 

105. Prima facie evidence. See C. M. O. 31, 1915, 14-16. See also Service Records, 16. 

106. Procuring another to desert— Is an offense. G. C. M. Rec. 23280. 

107. Proof of — In order to establish the commission of the specific offense of "Desertion,"' 

both the fact of unauthorized absence and the specific intent permanently to abandon 
the naval service or, at least, to terminate the pending contract of enlistment, must be 
proved. C. M. O. 49, 1910, 8-9; 10. 1911, 6; 16, 1913, 5; 22, 1913, 3; 41, 1914, 3. 

108. Same— Intent. See Desertion, 58-78. 

109. Same— By documentary evidence. See Certificates 3-5; Descriptive Lists, 1, 3, 4. 

Official Records; Reports of Deserters Received on Board; Service 
Records. 

110. Same— Where it appears that a recruit, after having been duly enlisted and executed 

the required oath, was sent home with instructions t»return the next day, but instead 
of returning he "received an offer of a good job and went to work*" and subse- 
quently enlisted in the Marine Corps, concealing his previous enlistment, it was held 
that, as a matter of law, the accused was guilty both of " Desertion" and " Fraudulent 
enlistment." The testimony of the accused that he did not understand he was bound 
until he had been put in uniform and ordered to duty indicate an ignorance of law and 
not of fact. Such statements may be made the basis of a recommendation to clemency, 
but do not constitute a legal defense, as ignorance of the law furnishes no exemption 
from criminal responsibility. File 26251-4200, See.- Navy, Jan. 25, 1911; Desertion, 77. 
114, Same — A fireman, second class, U. S. Navy, was tried before a general court-martial 
on thecharge of " Desertion" and found not guilty. 

The prosecution introduced evidence to prove that the accused received leave of 
absence while his ship, the U. S. S. Arkansas, was at Newport, R. I., for forty-eight 
hours which expired August 11, 1913, and that the accused failed to return'at the 
expiration of this liberty and remained absent without leave until he was returned 
on board the receiving ship at New York by thecivil authorities on February 11, 1914, 
after an unauthorized absence of six months. 

The prosecution thus made out a clear prima facie case of " Desertion" against the 
accused, and it is established that a prima facie case is conclusive in the absence of 
evidence satisfactorily rebutting same. (C. M. 0. 10, 1912, 8; 16, 1913, 5; 34, 1913, 7.) 

The accused testified that be was too sick to return to his ship when his leave 
expired; that his doctor seat a telegram to his commanding officer so stating, and that 
thereafter he attempted to report on the U. S. S. Washington, at the navy yard, New 
York, N. Y., and was told to go to the Naval JTospital, New York, which he did ; that 
the medical officer at the hospital stated he was not in need of treatment and that he 
returned to the U. S. S. Washington, but was not taken up; and that about September 
8, 1913, tiring of attempting to report without success he left the navy yard, discarded 
his uniform, obtained employment, and remained away until arrested by the civil 
authorities in civilian clothing, and returned to the Navv as a prisoner on Februarv 
11,1914. 

His story was corroborated by a letter received by him from the commanding 
officer of the U. S. S. Arkansas, and an indorsement thereon by the medical officer of 
the hospital, which were introduced in evidence, and by one witness who testified that 
the accused was at the navv yard, New York, N. Y., and on board the U. S. S. 
Washington at the time claimed bv him. 

In addition, the sister of the accused testified that he told her "he had reported and 
they said they didn't know what to do with him." This latter testimony was objec- 
tionable, not only as being clearlv hearsay, but also as falling under the rule exclud- 
ing self-serving declarations. (12*Cvc. 426.) 



DESERTION. 179 

Even if the court was convinced that the absence of the accused was excusable and 
satisfactorily explained up to the time he left the navy yard, about September 8, 1913, 
after making his two unsuccessful efforts to report, nevertheless there are still five 
months of unauthorized and unexplained absence, aggravated by other acts. The 
accused on the stand stated that he made no efforts during this period to communicate 
with the naval authorities, and that he changed his address without notifying them, 
that after having twice unsuccessfully attempted to report on theU. S. S. Washington, 
he left the navy yard without permission from anyone in authority, laid aside his uni- 
form, and obtained employment; that for five months he made no attempt to return 
to his ship despite the fact that the ship was at the navy yard, New York, for a greater 
portion of the period he was absent without authority; and he does not claim that he 
ever replied to his commanding officer's letter. 

If the accused at any time during his unauthorized absence had the intent perma- 
nently to abandon the service, that was all that was necessary to establish his guilt, 
and it is immaterial whether the intention was formed at the time of leaving the ship 
or at a subsequent date. (CM. 0. 30, 1910, 10.) The law judges a man's intention by 
his actions, and the fact that the accused, even admitting that he made a bona fide 
attempt to rejoin the naval service prior to September 8, 1913, thereafter failed to com- 
municate with ? and remained absent from, the service without authority for five 
months, changing his address without notice during thai* period, and finally being 
arrested and returned by the civil authorities, is sufficient evidence of his intention to 
desert. All the actions of the accused during this period clearly indicate that he 
intended to remain permanently absent and that he never would have returned if he 
had not been apprehended and brought back by the civil authorities. 

An intent to desert is inferred from the circumstances and duration of unauthorized 
absence (C. M. O. 22, 1913, 3), and the court in this case should have found the ac- 
cused guilty of " Desertion" as charged. 

While, as thus stated, the department considers that the court should have found 
the accused guilty of " Desertion," certainly he was, beyond cavil, guilty of absence 
over leave, yet the court even acquitted him of this offense. 

The department disapproved the findings and acquittal. C. M. O. 29, 1914. 8-10. 

112. Record— Complete records are necessary in desertion cases. C. M. O. 2, 1912, 4. 

113. Records of post— " Desertion" proved by. C. M. O. 37, 1909, 4. See also Evidence, 

DOCUMENTARY, 19. 

114. Reenlistment ol deserters— Sections 1420, 1996, 1998, and 1624, as amended by 

act of August 22, 1912 (37 Stat. 356), permits the Secretary of the Navy to enlist in 
naval service men who have deserted from military or naval service in time of peace, 
irrespective of a pardon restoring' the rights of citizenship heretofore forfeited by reason 
of desertion in time of peace, since it only prohibits the enlistment of men who have 
deserted in time of war. 

Therefore the law as it now exists authorizes the reenlistment of men who have 
deserted the military or naval service of the United States in time of peace in the dis- 
cretion of the department, without issuance by the President of an executive pardon 
restoring the rights of citizenship to such men, and, since the question of enlistment 
comes within the province of the Bureau of Navigation, the request of a man for 
reenlistment under these conditions is subject to the action of that bureau. File 26507- 
102, J. A. G., Oct. 12, 1912. See also File 14535-1088, J. A. G., Nov. 4, 1911; De- 
serters, 13. 

It is "contrary to the practice of the War Department to grant permission to reenlist 
in the cases of persons who have forfeited their rights of citizenship by reason of their 
conviction by a general court-martial of desertion until aftei the rights thus forfeited 
nave been restored." File 262S2-241, Sec. Navy, Nov. 9, 1915. 

115. Reports of Deserters Received on Board. See Reports of Deserters Received 

on Board. 

116. Restoration to duty— Effect of. See Deserters, 24. 

117. Retention in service prior to act of August 22, 1912 (37 Stat. 356)— Where the 

members of a general court-martial recommended an accused, who deserted prior to 
August 22, 1912, to the clemency of the revising power, the department stated m part: 
In view of the fact that the records of the department show that the accused was duly 
tried and convicted of " Desertion " and was dishonorably discharged from the Army 
therefor, which conviction according to section 1996, Revised Statutes prohibits such 
a person from "holding any office of trustor profit under the United States." the 
department can not exercise such clemency as would permit the retention of this man 
in the service, but in consideration oft he unanimous recommendation of the members 
of the court to clemency based upon the accused's previous service inthe MarineCorps. 



180 DESERTION. 

and the evidence as to character given by witnesses, the confinement, with correspond- 
ingforfeiture of pay and allowances, were remitted, and it was directed that the accused 
be released from arrest and discharged from the sendee in conformitv with the remain- 
ing terms of his sentence. C. M. O. 26, 1910, 5. See also Desertion, 24. 

118. Rewards. See Rewards. 

119. Sentence — Should include dishonorable discharge. See Dishonorable Discharge ,9. 

On May 30, 1821, the following sentence was adjudged by a general court-martial on 
"desertion": "To be punished with twenty-five lashes with the Cat o' Nine Tails on 
his bare back at such and place as may be ordered." G. C. M. Rec. 378. 

Also this sentence on July 19, 1821: "Receive fifty lashes at the gangwav of the 
Peacock," etc. G. C. M. Rec. 3 3. 

120. Service record. See Service Records. 

121. Ship, desertion from — A charge alleging the "Desertion from a ship about to sail 

on an extended cruise," is insufficient as it is essential that the charge allege desertion 
from the United States naval service. C. M. O. 49, 1910, 8-9. 

122. Specific intent. See Desertion, 58-78. 

123. Statement of accused to commanding officer — A statement of an accused, 

charged with "Desertion," made by him before his commanding officer whenhis offense 
is being investigated at the mast, is uniformly admitted in evidence when he is tried 
for the offense. C. M. 0. 43, 1906, 2. See also Confessions, 9, 24: Desertion, 125. 

124. Same— The commanding officer of an accused charged with "Desertion," was the 

only witness for the prosecution and testified as follows: 

" The accused was brought into my office on the twenty-seventh day of September 
last by a detective, charged with having deserted from the Marine Corps in August, 
nineteen hundred and one; he was in Army uniform, infantry, and stated or admitted 
that he had enlisted in the Army, in Philadelphia, four or five days before, I think 
September second. He admitted desertion from the Marine Corps, and stated in effect 
that he had been afraid to return on account of the penalty." 

• The specification supporting the charge preferred against the accused alleges that, 
while serving at the League Island Barracks he deserted therefrom, and from the 
Marine Corps, on or about August 19, 1901, and continued in desertion until he was 
apprehended by the civil authorities, and delivered at said barracks on September 
27, 1902. 

No further testimony or evidence of any kind was introduced by either the prosecu- 
tion or the defense, and the accused had no statement to make before the court. 

The court, after deliberating upon the evidence adduced, found the specification of 
the charge "proved" and that the accused was of the charge "guilty, " and sentenced 
him to the punishment usually awarded in such cases, viz, confinement for one year, 
with the customary penalties and forfeitures, and dishonorable discharge at the expi- 
ration of said period. 

While it is true that the testimony of the commanding officer above quoted shows 
that the accused was delivered to him by the civil authorities "charged with having 
•deserted from the Marine Corps in August, nineteen hundred and one," and that the 
accused "admitted desertion from the Marine Corps, " it nowhere appears in said tes- 
timony when or from what station this man deserted. It would seem that these 
facts might have been established by further questioning of the witness, supplemented 
if necessary, by other evidence usually obtainable in such cases. 

The finding"of "proved" without qualification is clearly not justified by the evi- 
dence before the court; and although the accused was shown to have admitted that 
he did desert from the Marine Corps, the terms of such admission as testified to by the 
•commanding officer are too general and indefinite to establish the particular offense 
described in the specification, for the commission of which this man was brought to 
trial. 

The proceedings, finding, and sentence in the foregoing case were disapproved. C. 
M. 0.212,1902. 

125. Statement by third party in presence of accused— Where a witness testifies 

"the police oificer stated that the accused gave himself up," and it is proved that such 
statement was made in the presence of the accused, it is admissible in evidence not 
being hearsay. C. M. O. 214, 1902. See also Confessions 24; Desertion 123. 
126 Statute of limitations— Defense of. See Statute of Limitations. 

127. Statutory offense — Desertion is a statutory offense. 

128. Surrender— As rebutting the inference of specific intent to desert. C M. 0. 16, 1913, 

5; 34, 1913, 7. See also Desertion, 68, 69, 73, 74, 102. 



DESERTION. 181 

129. Same— The dishonorable discharge included in the sentence of an accused convicted of 

" Desertion" was remitted by the department in view of the fact that he voluntarily 
surrendered himself. C. M. O. 49, 1892. 

130. Same — It is not true that the voluntary surrender of an absentee is sufficient in itself to 

make it impossible to prove " Desertion;" for although the fact that a person surren- 
ders himself as a deserter after but brief absence may properly be regarded as an ex- 
tenuating circumstance, such fact is not conclusive as against " Desertion." C. M. O. 
20, 1899, 1. See also C. M. O. 6, 1894; Mark of Desertion, 2. 

131. Uniform, discarding— As an inference of specific intent to desert. C. M. O. 42, 1909, 

5; 47, 1910, 9. See also Desertion, 73, 78, 111. 

132. War— Desertion in time of war— An accused was found guilty, by plea, of " Desertion 

in Time of War " and subsequent fraudulent enlistment. The offense was charged as 
desertion in time of war because such was the fact, and for the further reason that 
otherwise the case would have fallen within the provisions of the statute of limitations 
(Article 62 of the Articles for the Government of the Navy). The punishment award- 
ed, imprisonment " for a period of ten (10) years at hard labor/'with corresponding pen- 
alties and forfeitures, is severe; but inasmuch as the offense was committed in time of 
war, a much graver penalty, even that of death, might have been imposed, and the 
court has by such sentence, therefore, not exceeded its powers. It appears, however, 
that, while technically desertion in time of war, the offense was committed at the navy 
yard, New York, and accordingly it was not a case of desertion in the face of the 
enemy. 

The sentence was approved, but in view of the fact that, while the accused deserted 
in time of war and thus became subject to the extreme penalties, he actually deserted 
from a vessel at the navy yard, New York, under circumstances which warrant the 
department in mitigating the punishment imposed bv the court, the same was 
mitigated. C. M. 0. 185, 1902, 1-2 See also Desertion, 28, 29. 

133. Same— Desertion after the conclusion of the protocol with Spain of August 12, 1898, 

but prior to the signing of the treaty of peace or ratification thereof is " Desertion in 
Time of War." The date of the signing of the treaty is the earliest on which the War 
with Spain may be considered as to have terminated. File 14535-719. Sec. Navy, 
May 24, 1909. See also Treaty of Peace with Spain, 2. 

134. Same — Desertion after December 10, 1898, was not "Desertion in Time of War." 

The treaty of peace signed December 10, 1898, while not ratified until April 11, 1899, 
was effective from date of signing as far as exercise of sovereign powers was concerned. 
File 6642-03, Sept. 1, 1903. See also File 8693-01, Nov. 23, 1901 ; 6652, Jan. 24, 1907. 

135. Same — Persons convicted of "Desertion" in time of war can not have their citizen- 

ship rights restored except by pardon. See Desertion, 29. 

136. Same— Penalty of death. /See Charges and Specifications, 47; Desertion, 132, 137. 

137. Same— "Desertion in time of war" is one of the most serious offenses which can be 

committed by a person in the naval service. It involves a total disregard by the 
offender of his sworn contract of enlistment, and has in all times and countries aroused 
the indignation and animadversion of patriotic citizens, and which in the United 
States Navy may be tried bv general court-martial and punished by death and is not 
protected by the statute of limitations. File 19974-5, Sec. Navy, Nov. 17, 1915. See 
also War, 22. 

138. Warrant officers— Charged with. C. M. O. 15, 1903; 94, 1906; 96, 1906; 80, 1907; 17, 

191 1. See also File 28478-37, September, 1916. 

DESIGNATIONS. 

1. Officers— All official communications intended for officers holding positions with recog- 
nized titles shall be addressed to them by title and not by name, as "The Secretarv of 
the Navy," "Bureau of Navigation," "The Commandant," "The Commander in 
Chief, Fleet (or Squadron)," "The Commander, Squadron (or Divi- 
sion)," "The Commanding Officer," "Major General Commandant." (1-5322(2).) 
File 9160-5990, Sec. Navy, Nov. 15, 1915. See also Official Communications. 

DESIGNATION OF ACCUSED. 

1. Arraignment — Should include name and designation of accused. C. M. O. 49, 1910, 4. 

2. Sentence— Must include name and designation of accused. C. M. O. 37, 1909, 3; 42, 

1909, 6; 55, 1910, 8; 30, 1910, 7; 1, 1913, 5; 20, 1913, 3; 42, 1914, 4; 14, 1915. 2; 38, L916. 

3. Same— Forms of sentence published in court-martial orders indicate thai sentence 

should include. C. M. O. 42, 1909, 3; 55, 1910, 7; 14, 1910. 7; LS. 1910. S: 29. 1914, 7; 
42, 1914, 5. 

4. Same — Name and designation of accused in sentence must be in handwriting of iudire 

advocate. C. M. O. 42, 1914, 4. 



182 DISABILITIES. 

DETECTIVES. 

1. Arresting deserters. See Civil Officers, 2; Deserters, 2-6. 

2. Employment— By Government. See Civil Officers, 2; Deserters, 2; Rewards, 11,12. 

3. Reward— Payment of rewards for arrest of deserters. See Rewards, 11, 12. 

DETENTION BARRACKS. 

1. Established. See File 26285-64:3, J. A. G. July 19, 1911. 

DETENTIONERS. 

1. Status of— Detentioners in confinement are "in confinement under sentence" of 

court-martial. They are actually confined or under guard, and all time spent under 
these conditions is credited on the term of confinement specified in the sentence and 
action of the convening authority. They have been held by the Comptroller of the 
Treasury to be naval prisoners, and entitled to the allowances on discharge provided 
by law for such prisoners. [See 178 S. & A. Memo., 3845.] 

After a detentioner or naval prisoner is restored to duty on probation he is not any 
longer "in confinement under sentence," but is on duty, receives full pay and allow- 
ances, and execution of the sentence is specificallv suspended during the probationarv 
period. File 26251-6297:9, Sec. Navy, Dec. 28, 1914; C. M. O. 6, 1915, 11. See aim 
File 262S7-128, Mar. 2S, 1912. 

2. Same — Enlisted men under detention are undergoing a modified form of imprisonment, 

being deprived of their liberty in accordance with the terms of general court-martial 
sentences. 

The detention barracks is a "prison," and the detentioners are "prisoners" within 
the meaning of the appropriation " Pay, miscellaneous." 

Detentioners are restored to duty on probation if their enlistments expire before 
expiration of full term of confinement to which sentenced. 

The uniform prescribed for the detentioner is the regular service uniform, in accord- 
ance with the spirit and purpose of the detention system. The Secretary of the Navy 
may prescribe such uniform as he desires for prisoners. 

The necessary clothing, etc. . for detentioners is paid for by them from the remittance 
of the required amount therefor, from the forfeiture of pay adjudged by the sentence; 
if not sufficient pay due, then the appropriation "Pay, miscellaneous" is chargeable 
therewith. 

Clothing furnished a detentioner from " Pay, miscellaneous," is returned in the bar- 
racks for reissue. But the discharged detentioner is furnished suitable civilian cloth- 
ing; if discharged to duty, he is required to obtain necessary clothing and small stores 
and pay for it "from his pay; if his pay is insufficient therefor, the cost of such overissue 
while on probation should be treated as authorized by Navy Regulations, 1909, R-678 
(2) [Navy Regulations, 1913, 1-1923(2)] File 26287-128, Mar. 28, 1912. 

DICTAPHONE. 

1. Office of Judge Advocate General— Use of, in. File 23275-15, J. A. G., Feb. 3, 1916. 

DIPLOMATIC OFFICERS. 

1. Naval officers— If any officer of the Navy accepts or holds an appointment in the 

Diplomatic or Consular Sendee of the Government, he will be considered as having 
resigned his place in the Navy, and it shall be filled as a vacancy. (Sec. 1440, R. S.) 
(R-1533.) See Retired Officers, 26. 

2. Orders to commanding officers. See File 5542-00. 

3. Retired naval officers— By section 1440 of the Revised Statutes, officers of the Navy 

are forbidden to hold office in the Diplomatic or Consular Service, and this includes 
retired officers of the Navy. File 12-4, Nov. 5, 1906, quoted in File 27231-3, J. A. G., 
Nov. 1, 1909. See also Retired Officers, 26. 

4. Statements of a foreign ambassador— As to the construction of the laws of his coun- 

try. See Attorney General, 11. 

DIRECTORY REGULATIONS. See Regulations, Navy, 29. 

DIRECTORY STATUTES. See Advisory Statutes, 1; Statutory Construction and 
Interpretation, 32. 

DISABILITIES. 

1. Citizenship. See Desertion, 23-29; Dishonorable Discharge, 5, 6. 

2. Civil disabilities— Resulting from conviction of "Desertion." C. M. O. 36, 1901, 2. 

See also Desertion, 23-29; Dishonorable Discharge, 5, 6. 

3. Retirement— For physical disability. See Retirement of Officers, 40. 



DISCHARGE. 183 

DISAPPEARANCE. 

1. Enlisted men. See Line of Duty and Misconduct Construed, 18-21. 

2. Officers. See Desertion, 89-91. 

DISAPPROVAL. 

1. Convening authority disapproves— No sentence can be carried into effect after dis- 
approval of convening authority. See Convening Authority, 21; Criticism of 
Courts-Martial, 35; Reviewing Authority, 19; Secretary of the Navy, 25; 
Sentences, 35. 

DISBARMENTS. 

I. Civilian attorney — Threatened by department— Claims of a civilian attorney against 

certain officers for services rendered in securing legislation in their behalf. File 
17789-12 : 1, J. A. G., Feb. 25, 1910. See also Debts, 18. 

DISBURSING OFFICERS. See also Embezzlement; Pay Officers. 

1. Auditor lor the Navy Department— Authority of, to order payments made. See 

Death Gratuity, 1. 

2. Death Gratuity. See Death Gratuity, 1. 

3. Designation of. See File 9160-5990, Sec. Navy, Nov. 15, 1915. 

4. Hospital Ship. See Hospital Ships, 3. 

5. Liability of— A class of cases exists in which disbursing officers have, from necessity, 

felt compelled to trust unbonded clerks with Government funds notwithstanding the 
absence of any law or regulation authorizing such action. Even in such cases the 
pay officer has been held responsible. (See C. M. O. 6, 1911.) File 26251-11756: 4, 
Sec. Navy, Apr. 24, 1916. 

6. Negligence of— Constitutes embezzlement. See Embezzlement, 7, 18. 

7. Repeated travel. File 9160-5990, Sec. Navy, Nov. 15, 1915. 

8. Responsibility of regarding payments— A disbursing officer is not responsible for 

illegal payments made by him in good faith and in accordance with the certificate 
of another officer as to the facts. An appropriation being under the control of the 
head of a department, it is v/ithin the latter's power to prescribe rules to govern 
the disbursing agent in making disbursements therefrom. (9 Comp. Dec, 545; see 
also Smith v. U. S., 23 Ct. Cls., 452; 21 Comp. Dec, 314; Comp. Dec Nov. 21, 1914, 
File 26254-1672; 21 Comp. Dec, 357; File 26254-1451:5, Oct. 31, 1914; File 26254- 
1451:11, Apr. 12 1915; 30 Op. Atty. Gen., — .) 

9. Shortage of public funds — Where a shortage of public funds occurs through the 

apparent fault of a disbursing officer, he should be brought to trial therefor by general 
court-martial with a view to having his responsibility established and the Govern- 
ment protected against subsequent claims by the officer for reimbursement. File 
26251-11756:4, Sec/Navy, Apr. 24, 1916. 
10. Superior officer— The power to require a disbursing officer to make a payment is pos- 
sessed only by the officer's superior. File 26543-66, Sept. 8, 1911. See also R. S. 285; 
Smith v. U. S., 24 Ct. Cls., 215; 10 Comp. Dec 635. 

II. Unbonded subordinate — A disbursing officer of the United States could not justify 

his conduct in voluntarily placing unlimited trust in an unbonded subordinate, 
when the safety of Government money is concerned, and he is confessedly ignorant 
of the character of that subordinate's private life, particularly when the subordinate 
was in fact living a life of dissipation and immorality at trie very places where he 
was on duty with the disbursing officer. File 26251-11756:4, Sec Navy, Apr. 24, 
1916. 

DISCHARGE. 

1. Bad-conduct discharge. See Bad-Conduct Discharge. 

2. "Certificate of discharge." See Civil War Service, 1. 

3. Character of — A discharge, other than dishonorable or bad-conduct, is not considered 

as a punishment, and it is objectionable for a naval court-martial to adjudge a discharge 
other than one of the aforementioned as part of the sentence. C. M. O. 30, 1910, 10. 

4. Citizenship rights— Desertion. See Desertion, 23-29; Dishonorable Discharge, 

5,6. 

5. Same— Offenses other than desertion. See Dishonorable Discharges, 5, 6. 

6. Conditional discharge. See Discharge Obtain ed by Fraud. 

7. Continental limits of United States— Bad-conduct discharge within. See Bad- 

Conduct Discharge, 4. 

8. Convenience of enlisted man— Receives an ordinary discharge. See Ordinary 

Discharges, 1, 2. 



184 DISCHARGE. 

9. Convict — And fugitive from justice discharged as undesirable. See Civil Authorities, 
12; Convicts, 2; Fugitive from Justice. 

10. Debt— Enlisted men discharged in debt. See Bad-Conduct Discharge, 3; Debts, 

7; Pay, 87. 

11. "Discharged," "Dismissed," "Wholly retired"— Denned and compared. File 

26260-697, 1392, J. A. G., June 29, 1911, p. 26. See also Officers, 38. 

"The word 'discharged' is properly ' limited in its application to those who have 
enlisted for definite periods.' (Emory v. IT. S. , 19 Ct. Cls. , 254, 262), and unless quali- 
fied by other words, as, for example, 'dishonorable' discharge, 'bad-conduct' dis- 
charge, discharge 'without honor,' it does not carry with it any stigma of disgrace or 
punishment." File 26260-1392, 697, J. A. G. , June 29, 1911, pp. 25-25^. 

12. Dishonorable discharge. See Dishonorable Discharge. 

13. Foreign countries. See Bad-Conduct Discharge, 4. 

14. Fraud— Discharge obtained by fraud. See Discharge Obtained by Fraud. 

15. Fugitive from justice — And convict discharged as undesirable. See Civil Authori- 

ties, 12; Convicts, 2; Fugitive from Justice. 

16. Honorable discharge. See Honorable Discharge. 

17. Man— An enlisted man can not, by his own act, discharge himself. File 22724-18, 

J. A. G., Dec. 4, 1911. 

18. Ordinary discharge. See Ordinary Discharges. 

19. Pay— Discharge operates as remission of unexecuted loss of pay adjudged by court- 

martial sentence. See Bad-Conduct Discharge, 3; Debt, 7; Pay, 87. 

20. Purchase — Discharge by purchase. See Purchase, Discharge by. 

21. Remission ol unexecuted portion of loss of pay by discharge. See Bad-Conduct 

Discharge, 3; Debts, 7; Pay, 87; Set Off. 

22. Request— Discharge by request. See Ordinary Discharges, 2. 

23. Revocation of— Discharge obtained by fraud. See Discharge Obtained by Fraud. 

24. Same— And substitution of another, after issuance. File 1561, J. A. G., Apr. 27, 1905; 

7657-214, J. A. G., Feb. 17, 1914. See also Revocation, 7. 

25. Same — Action on the general court-martial case of an enlisted man was withheld pend- 

ing his incarceration in the Government Hospital for the Insane. The proceedings 
were subsequently set aside in view of the recommendation of medical survey, account 
insanity. Discharge ordered by department, and subsequently the discharge order 
was revoked by the department. G. C. M. Rec. 23312. 

26. Undesirable discharge. See Undesirable Discharge. 

27. "Without honor." See Desertion, 24; Discharge, 11. 

DISCHARGE OBTAINED BY FRAUD. 

1. False confession of murder — A general court-martial prisoner made a false confes- 

sion of murder. The department, on the request of the civil authorities, remitted 
the unexecuted period of confinement and dishonorably discharged the man from 
the service. This man later repudiated his confession, and an investigation proved 
that he had lied. The civil authorities requested that the Navy Department resume 
jurisdiction over the man. The question was referred to the Attorney General, 
who, in an opinion rendered Feb. 8, 1910 (File 26251-2798:8), held that the discharge 
fraudulently obtained might be revoked by the department, that the man was still 
an enlisted man in the Navy, his status not having been changed by the discharge 
issued to him in the manner stated. File 26251-2798:8. See also Com. v. Halloway, 
44 Penna., 210, 219; 16 Op. Atty. Gen., 349; 28 Op. Atty. Gen., 170; File 7657-159, 
J. A. G., Aug. 10, T912. 

2. Promise to reenlist— Where an enlisted man extends his enlistment, but before such 

extension takes effect he obtains a cancellation thereof upon condition that he would 
reenlist immediately upon discharge from his current enlistment, but fails to so reen- 
list, the discharge may be canceled and the man declared a deserter. If apprehended 
he may be tried by court-martial both for "desertion" and "conduct to the preju- 
dice ol good order and discipline." (See File 7657-159.) The canceling of the ex- 
tension of enlistment in this case was conditional, the condition being express, and 
the failure to comply therewith operated to restore his former status as fully as though 
the extension of his enlistment had never been canceled and the discharge issued. 
C. M. O. 6, 1915, 9-10. See also File 7657-159, J. A. G., Aug. 10, 1912; 7657-324; 7657- 
174; 26251-11394, Sec. Navy, Jan. 11, 1916; G. C. M. Rec. 31501; 28 Op. Atty. Gen., 
170. 

3. Revocation of. See Discharge Obtained by Fraud, 1, 2. 



DISCIPLINE. 185 

DISCIPLINE. 

1. Adversely affected. C. M. O. 25, 1915, 1. 2. 

2. Definition— In a Congressional committee report of January 22, 1819, the word "dis- 

cipline" is repeatedly used in the sense of instruction and training, For example, ref- 
erences are made to "discipline or military instruction"; to "the adoption of a sys- 
tem of military discipline for the militia, which would produce the effect contemplated 
by the first proposition," viz, "that the whole male population of the United States of 
the proper age should be trained to the use of arms"; to "discipline evolutions"; 
to the necessity that "our militia be instructed"; to "an improvement in tactics" 
on the part of the professed soldier, and the necessity that the citizen "perfect him- 
self in the same arts and discipline"; to the fact that "military discipline consists in 
the observance of a number of minute particulars, which to the novitiate in arms have 
no apparent object, but which forms the links of a beautiful and connected system"; 
to the necessity of "a course of discipline during the period of non-age" in order to 
diffuse "an adequate knowledge of the art of war." File 8124-55, J. A. G., Oct. 17, 
1916, p. 5. 

3. Same — Defining the word "discipline" as used in a certain statute a civil court stated: 

"The word 'discipline' as there used means 'system of drill,' 'systematic training,' 
'training to act in accordance with established rules, accustoming to systematic and 
regular action.' See Webster's New International Dictionary, and also 27 Cyc. 496." 
(State v. Peake, 22 N. D. 457, 40 L. R. A. (N. S.) 354, 135 N. W. 197.) File 8124-55, 
J. A. G.,Oct. 17, 1916, p. 6. 

4. Same— "By the term 'discipline' as used in the Constitution of the United States, 

article 1, section 8, is meant 'system of drill."' (27Cyc.496.) File 8124-55, J. A. G., 
Oct. 17, 1916, p. 6. 

5. Disappears— "All discipline in the American Navy disappears where such offenses 

[using abusive language toward his commanding officer] as the accused has been found 
guilty of are not met with condign punishment." C. M. O. 26, 1913. 

6. Disobedience of orders— As affecting discipline. See Disobedience of Orders, 4. 

7. Disrespect to superior officer— Strikes at root of military discipline. C. M. O. 13, 

1915, 2. 

8. General court-martial and court of inquiry records and questions of dis- 

cipline—Referred to Bureau of Navigation. See Bureau of Navigation, 7. 

9. Ignorance of military discipline— Disaster caused by. C. M. O. 37, 1915, 9. 

10. Obedience — It has been repeatedly recognized by the courts that the first duty of a 

military man is obedience and that without this there can be neither discipline nor 
efficiency. C. M. O. 37, 1915, 7. 

11. "Pernicious influence upon." C. M. O. 22, 1915, 9. 

12. Prompt punishment — Certainty of prompt punishment is more conducive to dis- 

cipline than punishment deferred long after the offense. C. M. O. 10, 1915, 6. See 
also Court, 117. 

13. Respect and confidence — Of subordinates in the integrity, ability, and responsi- 

bility of their superiors is the highest incentive to discipline. C. M. O. 36, 1915, 2 

14. Severity— Should not be mistaken for discipline. G. O. 168, Jan. 6, 1872. 

15. Ship. C. M. O. 14, 1879, 3. 

16. Strict— The discipline of the naval service must be strict, the tribunals for its enforce- 

ment must be summary, and their legal sentences should be carried into execution 
without regard to technicalities which do not affect the substantial rights of persons 
or the precedents of the service. G. O. 162, Mar. 25, 1871. 

17. Subversive of— An unbecoming attitude of senior officers toward subordinate officers 

is subversive of good discipline. C. M. O. 41, 1915,9-10. See also Disobedience of 
Orders, 4. 

18. Suffers— Where guilty go unpunished. C. M. O. 49, 1915, 8. See also C. M. O. 44, 

1915, 2. 

19. Summary court-martial— Because the summary court-martial sentencing an ac- 

cused to extra police duties was considered illegal by the commander in chief and 
set aside by the Secretary of the Navv does not relieve the accused from responsi- 
bility when he refuses to obey the order of his superior officer. C. M. O. 87, 1896. 

20. "System of discipline"— The naval appropriation act of August 29, 1916, provides 

that the Naval Militia "will be subject to the 'system of discipline' prescribed for the 
United States Navy and Marino Corps." Held: That under 1 his clause of the Statute 
the laws and regulations of the Navy which provide for the enforcement of discipline 
by means of punishment do not apply to the Naval Militin. File 8124-55, J. A. G., 
Oct. 17, 1916, p. 1. See also System of Discipline; C. M. O. 37. 1916. 

21. Same— "Rules and Discipline of Baron de Steuben"— Were adopted by Congress 

March 29, 1779, made applicable to the militia by act of May S, 1792, continued in force 



186 DISCIPLINE. 

until the latter act was repealed by Congress May 12, 1890. They did not contain any 
provisions with reference to punishments, but related merely to the formation, equip- 
ment, maneuvers, and general training and instruction of troops. File 8124-55, J. A. 
G. Oct. 17, 1916, p. 3 

22. Undue leniency— "Undue leniency is as hurtful to the proper conduct of a military 

command as undue severity and should be carefully avoided." File 20971-19, Sec. 
Navy, Aug. 20, 1909. 

23. Same — Commissioned officers hold in "light estimation the discipline of the Navy" 

when as members of a naval court-martial the v adjudge a mild and inadequate sentence 
for a very serious offense. See Adequate Sentences, 13. 

DISCIPLINARY BARRACKS. See Detentioners; Sentinels, 13. 

DISCONTINUANCE. See Nolle Prosectji. 

DISCREDITING NAVAL SERVICE. 

1. Officer. C M. O. 8, 1909. 

DISCREDITING UNIFORM. 

1. Officer. C. M. O. 4, 1909. 

DISCRIMINATION AGAINST UNIFORM. 

1. State laws — As a result of representations made by the department to the officials of 

the State of Virginia in connection with various complaints of discrimination aeainst 
enlisted men of the naval service in public places of amusement in the vicinity of 
Norfolk, Va., there has been recently passed by the legislature of that State an act, 
which will be effective after June 18, 1916, providing: 

"(1) That it shall be unlawful for any common carrier, innkeeper, or proprietor or 
lessee of any place of public amusement or entertainment, or any agent, servant, or 
representative of any such common carrier, innkeeper, proprietor or lessee as afore- 
said, to debar from the full and equal enjoyment of the accommodations, advantages, 
facilities or privileges of any public conveyance on land or water or any inn or of any 
place of public amusement or entertainment, any person in the Army, Navy, Marine 
Corps or Revenue-Cutter Service of the United 'States, or of the National Guard or 
naval service of^ this State, or otherwise in the military or naval service of the United 
States, or of this State, wearing the uniform prescribed for him at that time or place 
by law ; regulation of the service, or custom, on account of his wearing such uniform 
or of his being in such service. 

"(2) Any person who is debarred from such enjoyment contrary to the provisions 
of section 1 of this act shall be entitled to recover in an action oh the case from any 
corporation, association or person guilty of such violation, his actual damages and 
§100 in addition thereto; and evidence that such person debarred was at the time 
sober, orderly, and willing to pay for such enjoyment in accordance with rates fixed 
therefor for civilians, shall be prima facie evidence that he was debarred on account 
of his wearing such uniform or of his being in such service. 

"(3) Any person violating any provision of this act shall be guilty of a misde- 
meanor.'' 

{See File 23243-77:5; see also File 23243-50 for copy of laws of United States, Massa- 
chusetts, New Hampshire, Minnesota, New Jersey, New York, Pennsylvania, and 
Rhode Island on this subject.) C. M. O. 9, 1916, 9. 

In a case which arose in Rhode Island and in which the Navy was officially con- 
cerned a civil action for damages was brought by a chief petty officer against private 
parties, and at the request of the Navy Department the Attorney General instructed 
the United States attorney to assist in said proceedings, which grew out of a discrimina- 
tion against the naval uniform. (File 5421-3. See also File 7657-330.) File 20392- 
612, J. A. G., Aug. 30, 1916. See also File 23243-78, Sec. Navy, Dec. 7, 1915; 5421-6, 
Jan. 22, 1907; 5763; 5012-55, J. A. G., July 5, 1915; 23243-79, July 29, 1916; 5012-63 
(N. Y.); 21355-33; 2 (N. Y.); 5012-58:1, Sec. Navy. Nov. 3, 1916; C. M. O. 46, 1916. 

2. Uniformed enlisted men— Not allowed on the dancing floor. File 23243-79, July, 1916. 

3. "White list"— Of reputable places willing to serve men in uniform proposed 'as an 

effective means of preventing discrimination against uniform regardless of existing 
or prospective statutes. File 23243-78:3, J. A. G., Mar. 18, 1916. 

DISEASES. 

1. Absence, unauthorized— Diseases contracted during— G. O. 100, construed. See 

General Order No. 100, June 15, 1914; CM. O. 3, 1917, 6. 

2. Immoral habits— Diseases contracted by an officer in consequence of immoral habits. 

C. M. O. 40, 1889. 



DISHONORABLE DISCHARGE. 187 

DISGRACE. 

1. Naval service— By officer. C. M. O. 4, 1909; 8, 1909. 

2. Questions— The answers to which might disgrace. See Self-Incrimination, 11, 12. 

DISHONORABLE DISCHARGE. 

1. Allowances of marines— If dishonorable discharge is adjudged in general court- 

martial sentence, loss of allowances should be adjudged. See Allowances, 3. 

2. Same— Should be remitted if the dishonorable discharge is remitted. See Allow- 

ances, 4. 

3. Ambiguous — Since there are several forms of discharge known to the naval service, 

courts-martial should designate in their sentences the character of the discharge 
adjudged. C. M. O. 49, 1910, 14-15. See also Discharge, 3. 

4. Army— If a man has been dishonorably discharged from the Army, he should be dis- 

honorably discharged from the naval service when tried by general court-martial. 
See Army, 10. 

5. Citizenship— Dishonorable discharge from the naval service does not cause forfeiture 

of citizenship under any law of the United States. What effect, if any, such dis- 
charge may have upon rights such as voting, under the laws of the State where the 
man resides, is a question within the jurisdiction of the local State authorities and 
not of the Navy Department. File 9212-37, Sec. Navy, May 19, 1913; C. M. O. 22, 
1915, 6. See also File 9212-65, Oct. 14, 1915. 

6. Same — In proceedings in revision in a certain general court-martial case, the court 

stated: "In this case the sentence provides for dishonorable discharge, which carries 
with it the loss of the rights of citizenship." The court appeared to have been under 
some misapprehension as to the Federal statutes, which make no reference to dis- 
honorable discharge. C. M. O. 2, 1912, 3. 

7. Deck courts— Not to adjudge. See Deck Courts, 20. 

8. Desertion— Where the court did not include dishonorable discharge in the sentence 

of a convicted deserter, the department stated: "Inasmuch as the court has not 
sentenced the accused to be dishonorably discharged upon the expiration of his 
term of confinement, he will, upon his final discharge from the service, so far as his 
punishment for desertion is concerned, leave the naval service in a status of honor, 
it having been held by the Supreme Court of the United States that the 'honorable 
discharge' of a deserter was a formal final judgment passed by the Government 
upon the entire military record of the soldier, and an authoritative declaration by 
it that he had left the service in a status of honor." (U. S. v. Kelly, 15 Wall., 34.) 
C. M. O. 36, 1896; 38, 1896. See also U. S. v. Landers (92 U. S., 77). 

9. Same— Should include dishonorable discharge. C. M. O. 118, 1894, 2; 116, 1896; 117, 

1896; 36, 1896, 2; 38, 1896, 2; 146, 1900; 126, 1901. 

10. Same— Sentence in case of desertion should include dishonorable discharge— Uni- 

formity in sentences imposed by general courts-martial is obviously desirable, and 
the department does not countenance a departure from the general rule requiring 
that the court should adjudge an adequate sentence in all cases. Especially in the 
case of desertion should the sentence include a provision for the discharge of the prisoner. 
In revision the court revoked its former sentence, and in lieu thereof adjudged a 
sentence which included dishonorable discharge. C. M. O. 16, 1913, 3-4. See also 
C. M. O. 5, 1911, 6. 

11. Same— Where convening authority has remitted dishonorable discharge from sentence 

of a deserter the department discharged the accused at expiration of confinement 
"by reason of his conviction as a deserter." See Desertion, 24. 

12. Same— Convening authority should not remit dishonorable discharge in desertion, as 

such action is against spirit of R-816 (7). which states that dishonorable discharge 
should be included in sentence adjudged for desertion. C. M. O. 5, 1911, 6. 

13. Same — In a case where the accused was convicted of desertion and the court did not 

include dishonorable discharge in its sentence, the department, in consideration of 
the recommendation to clemency of the members, permitted the accused to stay in 
the service. C. M. O. 118, 1894, 2. See also C. M. O. 122, 1894. 

14. Fraudulent enlistment— Where accused has enlistments in both Naw and Marino 

Corps, discharge in sentence should read from "United States naval service." C. M. 
O. 29, 1914, 7. See also Fraudulent Enlistment, 83; G. O. 110, p. 5; Naw Regu- 
lations, 1913, R-816, as amended. 

15. Same — Man found guilty of, is not a suitable person to be retained in the naval serv ice. 

C. M. O. 102, 1893, 2. 

16. General court-martial— Dishonorable discharge can onlv be adjudged by general 

courts-martial. C. M. O. 36, 1914, 4. 



188 DISHONORABLE DISCHARGE. 

17. Same — Bad-conduct and dishonorable discharges are the only discharges looked upon 

as punishments, and they are the only discharges a general court-martial should 
adjudge. See Bad-Conduct Discharge, 7; Discharge, 3. 

18. Marines. See Allowances, 1, 3, 4, 8-10; Dishonorable Discharge, 1-2. 

19. Remission of— If the convening authority remits the dishonorable discharge in the 

sentence of a marine, he should also remit the forfeiture of allowances adjudged. See 
Allowances, 4. 

20. Revocation of— When sentence of dishonorable discharge is executed, it can not be 

revoked. (Op. Atty. Gen., May 28, 1909. See also 11 Op. Atty. Gen., 19; 17 Op. Atty. 
Gen., 297; 10 Op. Atty. Gen., 64.) Proceedings when approved and executed are final. 
File 26516-19, J. A. G., May 28, 1909. See also Revocation, 7. 

DISLOYALTY. 

1. Officer— Charged with. G. O. 52, Apr. 15, 1865. 

DISMISSAL. 

1. Acquittal— C. M. 0. 160, 1901, stated that a pay clerk was acquitted. This acquittal "w as 

approved by the department, but also stated that he "will accordingly be dismissed 
from the naval service." In C. M. O. 15, 1902, the department stated: 

"The attention of the service is called to departmental 'General Court-Martial 
Order No. 160,' dated September 26, 1901, in the case of * * *, United States 
Navy, wherein it was stated that he 'will accordingly be dismissed from the naval 
service.' 

" The department is of opinion that dismissal is not the logical sequence of acquittal, 
and that the proper course was to revoke the accused's appointment. The action in 
this case under date of September 26, 1901, has accordingly to-day been set aside, and 
the Bureau of Navigation has been directed to revoke his" appointment of September 
11, 1S99, as a pay clerk in the Navy, to take effect as of September 26 last, the date of 
the department's former action." C. M. O. 15, 1902. 

2. Acting boatswain — Sentence of dismissal confirmed by President. C. M. 0. 102, 1905. 

3. Confinement — In case of an officer sentenced to dismissal and confinement, the depart- 

ment, instead of reducing the period of confinement, recommended to the President 
that such reduction be made at the same time that it was recommended to the Presi- 
dent that the sentence of dismissal be confirmed; accordingly the President, in con- 
firming the sentence of dismissal, reduced the period of confinement as recommended 
by the department. G. C. M. Rec., 6245 (1881); 27526 (1913). 

4. Confirmed— Sentence of dismissal confirmed by President — No sentence of a court- 

martial, extending to the loss of life or to the dismissal of a commissioned or warrant 
officer, shall be carried into execution until confirmed by the President. All other 
sentences of a general court-martial may be carried into execution on confirmation 
of the commander of the fleet or officer ordering the court. (A. G. N. 63.) See 16 Op. 
J. A. G., 74, Nov. 2, 1911. 

5. Debts— Officer dismissed by sentence of court-martial for failure to pay just debts. 

SsPP IDl^RTS 4 21 

6. "Dismissal," "Discharge," "Wholly retired" — Defined and compared. File 26260- 

697, 1392, J. A. G., June 29, 1911, p. 26. See also Discharge, 11. 

7. Dismissal— From "United States Marine Corps, and from the service of the United 

States." C. M. O. 1, 1905. See Dismissal, 32, for correct phraseoloav of sentences. 

8. Same— "From the naval service of the United States." C. M. O. 1, 1879, 6; 3, 1905, 2. 

See Dismissal, 32, for correct phraseology of sentences. 

9. Drunkenness on duty — Every officer, especially medical officers, who is convicted 

of "Drunkenness on duty" should be dismissed. See Drunkenness, 30. 

10. Form — A general court-martial case involving dismissal of an officer was sent to the 

President for confirmation without mentioning expressly A. G. N. 53. C. M. O. 29, 
1881, 3. 

11. Form letter— For dismissing midshipmen. See Dismissal, 15. 

12. Mate— Sentence of dismissal— Executed on approval of convening authority — Unneces- 

sary for President to confirm. G. C. M. Rec. 15970; 16 J. A. G., Nov. 2, 1911. 

13. Midshipmen— It is unnecessary for the convening authority to refer a general court- 

martial record to the Secretary of the Navy for transmittal to the President in the 
case of a midshipman. (C. M. O. 36, 1909, 2; File 26262-198.) While it is not neces- 
sary that the President confirm the sentence of dismissal in the case of a midshipman, 
he did so in the following cases. C. M. O. 28, 1905; 67. 1906; 9, 1909; 10, 1909. 

14. Same — Advisable that sentences of dismissal of midshipmen be confirmed by Presi- 

dent. See Hazing, 6. 

15. Same— Form letter for dismissing midshipmen. File 26283-925, Sept. 18, 1915. 



DISMISSAL. 189 

16. Same — Reappointment of dismissed midshipmen improper. See Midshipmen, 70-73. 

17. Same — Power of Secretary of the Navy to dismiss. See Midshipmen, 80. 

18. Mitigation— The President has the power to mitigate a sentence of dismissal to loss 

of numbers. File 26202-198, J. A. G., Nov. 12, 1908; G. C. M. Rec. 9079; 9427. See 
also Probation, 10, 11; C. M. O. 2, 1917. 

19. Same— Sentence of dismissal may be mitigated by the Secretary of the Navy to sus- 

pension or loss of numbers. C. M. O. 31, 1914; 39, 1914; 48, 1914, 11; C. M. 0. 2, 1917. 

20. Same— Sentence of dismissal was mitigated by the President to restriction to limits 

of ship or station and loss of pay. C. M. O. 32, 1905. See also C. M. O. 82, 1892, 18-19. 

21. Not confirmed— Case was submitted to the President with the recommendation that 

the sentence of dismissal be not confirmed, and the President in his action stated 
that the sentence "is not confirmed." C. M. O. 30, 1903. 

22. Officers — No officer of the Navy who has been dismissed by the sentence of a court- 

martial, or suffered to resign in order to escape such dismissal, shall ever again be- 
come an officer of the Navy (R. S., 1441). File 13673-3728, J. A. G., Mar. 17, 1916. 
See also File 5252-79, J. A. G., June 19, 1915. 

23. Same— An officer who has been dismissed can not be restored to the service except by 

reappointment. (25 Op. Atty. Gen., 579; 11 Op. Atty. Gen., 19, 22; 19 Op. Atty. 
Gen., 205; 20 A. and E. Enc, 636; McElrath v. U. S., 102 U. S., 426; U. S. v. Corson, 
114 U. S., 619; Vanderslice v. U. S., 19 Ct.Cls., 484.) See also Legislation, 5; File 
5252-73, J. A. G., Oct. 1, 1915. 

24. Same — A warrant machinist deserted; at the time of his desertion 100 warrant machin- 

ists was the full number allowed by law, and the vacancy caused by his desertion 
was filled, thus bringing the number up to that allowed by law and vacating this 
machinist 's number. He was therefore out of the Navy. See Desertion, 90, 91, 138. 

25. Same — Sentence's as confirmed involving dismissals of officers. C. M. O. 11, 1914; 17, 

1914; 24, 1914; 27, 1914; 30, 1914; 50, 1914; 19, 1915; 47, 1915; 1, 1916; 15, 1916. 

26. Same— Officers of the Navy are not subject to dismissal by the President except pur- 

suant to sentence of court-martial. (R. S., 1229, 1624, A. G. N. 36.) See G. 0. 148, 
Dec. 31, 1869. 

27. Pay clerks— Sentences as confirmed involving dismissal. C. M. O. 46, 1915. 

28. Paymaster's clerks— The sentence of dismissal in the case of a paymaster's clerk may 

be carried into execution when approved by the convening authority — Confirma- 
tion by the President is not necessary. 16 J. A. G., 65, Nov. 2, 1911; C. M. O, 26, 
1912, 4. See also C. M. O. 24, 1915; 26, 1915, where for certain reasons sentences were 
so confirmed. See also C. M. 0. 10, 1916, for dismissal of paymaster's clerk, U. S. M. C. 

29. Same — Res judicata. See Res Judicata, 5. 

30. Restoration— Of, officer after dismissal. See Dismissal, 23; Legislation, 5. 

31. Revocation of— "The order of December 30, 1865, dismissing * * *, master in the 

United States Navy * * *, declared void, and Mr. * * * is hereby, under 
and by virtue of the Revised Statutes of the United States, Title XV, chapter 10, 
article 37, restored to the retired list as master." G. O. 210, June 5, 1876. See also 
Midshipmen, 75. 

32. Sentence— Proper form— The court, therefore, sentences him, Lieut. * * *, 

United States Navy (United States Marine Corps), to be dismissed from the United 
States naval service. C. M. O. 27, 1914; 50, 1914; 47, 1915. See also Dismissal, 25. 
In one case the court used the following irregular phraseology: "To be dismissed 
from the United States Navy as an undesirable person for the naval service." C. M. O. 
146, 1900, 2. 

33. Suspended— Sentence of dismissal of a retired officer actually suspended twice by the 

President and then remitted. C. M. O. 23, 1896. 

34. Warrant officers (commissioned)— Sentences as confirmed involving dismissal. 

C. M. 0. 18, 1914; 21. 1915; 2, 1916. 

35. Warrant officers (commissioned) retired— Sentence as confirmed involving dis- 

missal. C. M. 0. 15, 1915. 

36. Warrant officers— Sentence as confirmed involving dismissal. C. M. O. 32, 1914; 20, 

1910; 34, 1916. 

37. Same— Sentences involving dismissal mitigated. C. M. O. 39, 1915; 4S, 1915. 

DISOBEDIENCE OF ORDERS. See Drunkenness, 52; Obedience; Orders. 

1. Enlisted men— Charged with. C. M. O. 5, 1911. 7. 

2. Mistake ot judgment— Disobedience of orders caused by a mistake of judgment in 

regard to professional rights and duties, rather than a deliberate intention of wrong, 
rarely requires a severe, and never a disgraceful, punishment. G. O. 140, Sept. 17„ 
1869. 



190 DISOBEDIENCE OF ORDERS. 

3. Most serious offense— " The offense of refusing to obey the lawful order of a superior 

officer is one of the most serious known to naval laws." C. M. O. 57, 1895, 3; 58, 
1895, 3. 

4. Same — " Disobedience of orders is, under any circumstances,, a serious offense, and 

when committed deliberately, by an intelligent officer, under a claim of right, must 
tend greatly to the subversion of discipline." G. 0. 140, Sept. 17, 1S69. 

5. Officers— Charged with. CM. 0. 1, 1882; 29, 1881; 24, 1886; 33, 1889; 40, 1889; 61£, 1S90; 

G. C. M. Rec. 6054; 6737. 

6. Same— General court-martial of an assistant engineer which involved a controversv 

between the line and staff as to the matter of command. Accused officer was 
charged with "Disobedience of the lawful order of his superior officer," the specifi- 
cation alleging that the accused refused to obey a lawful order of the officer of the 
deck. C. M. O. 67, 1892. See also Command, 19. 

7. Same — "Disobedience of orders by an officer is at all times a most grave offense. It 

becomes the fruitful parent of acts of like disobedience in others. It overturns all 
discipline and law and substitutes demoralization and disorder in their stead. It 
destroys all responsibility in the service, subverts the necessary protection of lawful 
authority, and the subordination essential to the safety, efficiency, and order of a 
ship, and causes confusion to usurp the place of regular and responsible command. 
"Unless disobedience, however slight, of orders by officers be checked and pun- 
ished by adequate penalties, the spirit of disaffection and lawlessness will take 
courage and is certain to extend itself to subordinates." C. M. O. 1, 1882, 3. See 
also Disobedience of Orders, 4. 

8. Specific intent— A deliberate purpose or peculiar intent is necessary to constitute the 

offense of disobedience of orders, and drunkenness may be a matter of legal defense 
in so far as it affects the capacity to entertain such purpose or intent. See Drunk- 
enness, 52. 

9. Wliat constitutes. File 26251-668: a. 

DISOBEDIENCE OF A LAWFUL ORDER OF THE CHIEF OF THE BUREAU 
OF NAVIGATION. 

1. Officer— Charged with. C. M. O. 39, 1914. 

DISOBEDD3NCE OF A LAWFUL ORDER OF THE SECRETARY OF THE NAVY. 

1. Officer— Charged with. C. M. O. 7, 1894; 1, 1916; G. C. M. Rec. 7772. 

2. Warrant officer— Charged with. C. M. O. 34, 1916. 

DISOBEYING THE LAWFUL ORDER OF HIS SUPERIOR OFFICER. 

1. Enlisted man— Charged with. C. M. O. 28, 1913, 5. 

2. Midshipman— Charged with. C. M. O. 9, 1909. 

3. Officer— Charged with. C. M. O. 16, 1910; 16, 1911; 3, 1912; 36, 1912; 4. 1913; 37, 1913. 

4. Warrant officer— Charged with. C. M. O. 38, 1914. 

5. Warrant officer (commissioned)— Charged with. C. M. O. 20, 1911. 

DISORDERLY CONDUCT. 

1. Definition— "Disorderly conduct means not merely noisy and boisterous behavior, but 
includes within its legal signification whatever conduct strikes openly at the organiza- 
tion or interferes with the orderlv relations of civil or militarv society." G. O. 182, 
Apr. 2, 1873. 

DISPOSITION OF BODDSS. 

1. Chief pay clerk— Deceased left a signed statement in which he desired his body, in case 
of death, to be sent to a certain party , who would notify his parents, and "under no 
circumstances are my effects to be sent to my wife, * * * as I have not lived with 
her or written to her for many years." This third party requested that the bodv be 
forwarded to the deceased's father and the effects to her. The wife of the deceased 
requested that the remains be shipped to her. Held, That the remains being prop- 
erly in the custody of the department and it being necessary to come to a prompt 
decision in the matter without waiting to have the matter determined by judicial 
procedure, it was directed that the remains be disposed of in accordance with the 
request of the deceased's father, which, it would appear, would he in compliance with 
the testamentary disposition made by the deceased. File 26250-860:1, Sec. Navy. 
Oct. 26, 1916. 



DISPOSITION OF EFFECTS. 191 

DISPOSITION OF EFFECTS. 

1. Deserters. See Deserters, 11, 12. 

2. Enlisted men— The department is legally authorized to deliver the effects of a deceased 

enlisted man into the care of the public administrator of the county of New York, 
N. Y., upon said public administrator producing letters of administration or other 
satisfactory evidence of his authority to receive said effects. In this connection the 
following is quoted with reference to the authority of public administrators in gen- 
eral, which would be applicable to the present case in the absence of evidence showing 
a different state of law in New York: 

"A public administrator is not merely as such entitled to take charge of and admin- 
ister estates, although he may under certain circumstances take charge temporarily; 
but it is ordinarily necessary that he should be appointed administrator by the court 
upon his petition being duly filed and due notice being given. In appointing the 
public administrator to administer any particular estate, the court exercises the same 
jurisdiction that it does in the grant of letters in ordinary cases, and when he is so 
appointed he holds the same relation to each individual estate that a private admin- 
istrator would." (18 Cyc. 117.) File 26250-477:8, J. A. G., Dec. 8, 1914; C. M. O. 6, 
1915, 10. 

3. Same— See File 26250-477:6£, J. A. G., Oct. 8, 1914, for rule of department. 

4. Money. File 7657-183; 7657-231; 7657-253; 26250-477:6^; 26260-587:2; 26250-131:1. 

5. Officers' effects— Should be delivered only to a duly appointed administrator of said 

officer's estate, when effects involved are of a value in excess of $500. File 28478-33, 
J. A. G., Apr. 17, 1916. 

6. Personal effects— Where no demand is made by a duly appointed legal representative 

of the estate, the personal effects of deceased persons in the Navy may be disposed of 
in the order of precedence prescribed by act, May 27, 1908 (35 Stat. , 373), with reference 
to cash accounts of deceased officers and enlisted men of the Navy and Marine Corps 
"where the amount due the decedent's estate is less than $500." (File 26250-477:6|, 
J. A. G.. Oct. 8, 1914; 28478-33, J. A. G., Apr. 17, 1916.) In a case which involves 
effects oi a value greatly in excess of $500, and includes checks, certificates of stock, 
etc., the property in which could be transferred only upon the order of a duly appointed 
representative of the estate, advised that the aforesaid effects left by the deceased 
should be delivered only to a duly appointed administrator of said person's estate. 
File 28478-33, J. A. G., Apr. 17, 1916. See also File 808-1, J. A. G.; 5206-5, J. A. G.; 
26250-131:1. 

7. Prisoners— Enlisted men. File 7657-183, J. A. G., Mav 26, 1913; 7657-231, May 1, 1914; 

7657-253, Sept. 9, 1914; 26250-477:6*, Oct. 8, 1914; 27222-41, Sec. Navy, July 1, 1916. 
S. Same— Pay clerk. File 28478-33. 

DISPUTED FACTS. 

1. Court— Findings of, not in general disturbed where facts are in dispute. See Criticism 
of Courts-Martial, 14. 

DISRATING. See Reduction in Rating. 

DISRESPECT TO THE SECRETARY OF THE NAVY. 

1. Officer— Charged with. C. M. O. 40, 1889. 

DISRESPECT TOWARD THE ACTING SECRETARY OF THE NAVY. 

1. Officer— Charged with. C. M. O. 40, 1889, 5. 

DISRESPECTFUL IN LANGUAGE TO HIS SUPERIOR OFFICER WHILE IN 
THE EXECUTION OF HIS OFFICE. 

1. Officer— Charged with. C. M. O. 4, 1911. 

DISRESPECTFUL AND INSUBORDINATE TO HIS COMMANDER IN CHIEF. 

1. Officer— Charged with. G. C. M. Rec. 6543. 

DISRESPECTFUL IN LANGUAGE AND DEPORTMENT TO HIS SUPERIOR 
OFFICER WHILE IN THE EXECUTION OF THE DUTIES OF HIS 
OFFICE. 

1. Officer— Charged with. C. M. O. 16, 1910, 2. 

2. Warrant officer— Charged with. C. M. O. 13, 1915. 

50756°— 17 13 



192 DRUMMER, U. S. M. C. 

DISTRICT ATTORNEY. 

1. Assistance of— For court of inquiry. See Attorney General, 8; Courts, of In- 

quiry, 16. 

2. Assistance to— Appointment of person to assist district attorney made only on request 

of district attorney. See Attorney General, 9. 

DISTRICT COURTS OF THE UNITED STATES. 

1. Habeas corpus — Power to issue writs of. See Jurisdiction, 28, 35-39. 

2. Naturalization— Aliens. See Citizenship, 2. 

DISTRICT JUDGE. C. M. O. 31, 1915, 8. 

DIVISIONAL OFFICER. 

1. Counsel, as— Preferable as counsel for a man in his division. C. M. O. 6, 1909, 3. 

DIVORCE. 

1. Corespondent. See Civil Authorities, 42. 

2. Citizenship — Of foreign-born child of alien parents — Mother divorced and married 

American citizen. File 26252-101, See. Navy, Nov. 6, 1915. 

3. Enlisted man — Request by civil authorities that an enlisted man appear as core- 

spondent. See Civil Authorities, 42. 

4. Nonsupport— Wife instituted proceedings against officer. See Civil Courts, 7. 

5. Officer— Sued for divorce. See Civil Courts, 7. 

DOCKET. 

1. Advancement of case — On docket when United States a party. See Civil Courts, 15. 

DOCUMENT. See Certified Copies; Evidence, Documentary. 
DOCUMENTARY EVIDENCE. See Evidence, Documentary. 
DOMESTIC TROUBLES OF OFFICERS. Sec File 28478-38. 

DOMICILE. 

1. Midshipmen— As to determining domicile of candidate for midshipman. See Mid- 

shipmen, 6. 

2. Parental. See Poll Taxes, 2. 

"DOPE." See Blotter; Gouging. 

DOUBLE IRONS. 

1. Abolished — "The use of irons, single or double, is abolished except for the purpose of 

safe custody or when part of a sentence imposed by general court-martial. " (A. G.N. 
24; act Feb. 16, 1909, 35 Stat., 621.) 

2. Commanding officer — Tried by general court-martial for cruelty to enlisted men 

under his command. Among other things he placed them in double irons, etc. C. 
M. O. 29, 1890. See also Commanding Officers, 15; Drunkenness, 87. 

3. General court-martial — Sentences including. C. M. 0. 162, 1902. 

DOUBLE JEOPARDY. See Jeopardy, Former. 

DOUBLE TIME FOR FOREIGN SERVICE. 

1. Enlisted men— Extended enlistments. See Enlistments, 13. 

DRAFT OR CONSCRIPTION. See Conscrd?tion or Draft. 

DRILL BOOKS. 

1. Regulations — Force and effect of. See Regulations, Navy, 14. 

DROWNING. See Line of Duty and Misconduct Construed, 23-42. 

DRUG. C. M. O. 42, 1909, 13; 11, 1905, 2. 

DRUMHEAD COURT-MARTIAL. See In re Eagan, 8 Fed. Cas., 4, 303. 

DRUMMER, U. S. M. C. 

1. General court-martial— Tried by. C. M. O. 38, 1883; 9, 1885. 



DRUNKENNESS. 193 

DRUNKENNESS. 

1. Absence unauthorized— "Voluntary drunkenness is never an excuse for an offense 

such as unauthorized absence, but in many cases is an aggravation." (G. O. 110, 
p. 7. See also C. M. O. 11, 1905, p. 2.) The above statement was made by the de- 
partment in the case of a chief boatswain who was found guilty of "Absence from 
station and duty after leave had expired," and "Drunkenness." C. M. O. 25, 1915, 
2. See also CM. O. 14, 1910, 10; Absence from Station and Duty after Leave 
had Expired, 9, 10. 

2. Abstention — "If he is liable to be overcome in this manner by their moderate use, 

he must realize the importance for the absolute abstention from their use." C. M. 
O. 7, 1908, 1-2. 

3. Affidavit of physician— Regarding effect of intoxicating liquor— Not admissible as 

evidence. See Affidavits, 5. 

4. Alcoholism. See Alcoholism. 

5. Aggravation — Voluntary drunkenness is never an excuse for unauthorized absence but 

in many cases is an aggravation. See Absence from Station and Duty after 
Leave had Expired, 9, 10; Drunkenness, 1. 

6. Arrest of drunken enlisted men— No officer shall assist personally in the arrest of 

a drunken man further than may be absolutely necessary, but the arrest shall always 
be made by persons not above the grade of petty officer, who are to be instructed to 
use no greater force than that required to restrain or confine the offender. (R-1432.) 
See Drunkenness, 87, 90. 

7. Assault — Where an accused shot and wounded another while accused was on post 

and drunk, the court finding the accused guilty thereof, but that the word "mali- 
ciously" was not proved, apparently because accused was drunk at the time of the 
shooting, the department held that the court should not have excepted the word 
"maliciously" in the finding, since "a drunken man, equally with a sober man, is 
presumed to intend his acts." C. M. O. 7, 1911, 13. See also Assault, 15. 

8. Same — Drunkenness may be a defense to a charge of "Assaulting and striking his 

superior officer while in the execution of the duties of his office, " the specification 
alleging a willful and malicious assault. C. M. O. 47, 1910, 8. 

9. Assault and battery — Voluntary drunkenness furnishes no excuse for assault and 

battery and evidence of it is inadmissible. It is not necessary to allege a specific intent 
to commit the act, the general criminal intent being presumed. C M. O. 8, 1911, 
4-6. See also Assault, 15, 18. 

10. Beer— Specification under "Drunkenness" alleged that accused was so much under 

influence of beer or some other alcoholic stimulant," etc. C. M. O. 20, 1888. See 
also Beer, 1. 

11. Burden— Burden is on party claiming drunkenness as a defense. C. M. O. 19, 1912, 7. 

12. Burglary — Drunkenness as a defense. C. M. O. 42, 1909, 10. See also Burglary, 3 

Drunkenness, 49; Intent, 2, 10. 

13. Clemency— Voluntary drunkenness does not afford any reasonable or good ground 

for the exercise of clemency. C. M. O. 8, 1911, 6. See also File 4578-04; Clemency, 
18, 19; Drunkenness, 84. 

14. Commanding officer—" For a commanding officer in the Navy to allow himself to 

become intoxicated is bad enough, but to be drunk on duty is intolerable." CM. 
O. 33, 1889, 3. See also Commanding Officers, 20, 21, 25. 

15. Confessions — While drunk. See Confessions, 4. 

16. Confinement of a drunkard— The state of the accused's health was not good, but 

his medical record indicated that the sources of his ill health are debauches, from 
which confinement will free him. CM. O. 146, 1S96, 2. 

17. Same — Intoxicated men shall not be confined in any place or manner that may be 

dangerous to them in their condition. (R-1431.) 

18. Danger of excess— In acting upon a case the department stated: "It is to be hoped 

that the accused [a midshipman] will be impressed with a wholesome fear of drink 
by this experience and have always in mind the dangerous possibilities of excess "' 
C M. O. 3, 1909. 

19. Debauches. C M. 0. 146, 1896, 2; 132, 1S97, 1. See also Drunkenness, 16, 76. 

20. Defense— Where specific intent is not necessary, it is a well-established general rule of 

law that voluntary drunkenness at a time a crime was committed is no defense. If 
a person voluntarily drinks and becomes intoxicated, and while in that condition 
commits an act which would be a crime if he were sober, he is fully responsible. It 
can make no difference, where no spec; tic intent is necessary, that the defendant was 
so drunk as to have no capacity to distinguish between right and Wrong. C12 Cvo 
170.) C M. O. 25, 1914, 3. ^ : 



194 DRUNKENNESS. 

21. Same— Where necessary to prove specific intent. C. M. O. 25, 1914, 3. See also 

Assault, 15-19; Burglary, 3; Drunkenness, 12, 20, 22, 49-52, 89; Intent, 2, 
12; Statement of Accused, 16. 

22. Same— w'ei^ht to be given intoxication as a defense for various offenses. 

"Intoxication is now very generally held to be admissible to the jury on trials of 
indictment for murder, not to excuse but as bearing upon the question of mental 
capacity to entertain express malice or to exercise deliberation, thus tending to show 
the quality and degree of the crime; and probably the same rule would be extended 
to all cases where the actual presence of a deliberate intent in the mind of the prisoner 
at the time of the act is essential to the crime." (3 Greenleaf, sec. 6, p. 10.) "When 
a person voluntarily drinks and becomes intoxicated, and while in such a condition 
commits an act which would be a crime if he were sober, he is nevertheless responsi- 
ble, the settled rule being that voluntary drunkenness is no excuse. A person may 
be so drunk when he commits an act that he is incapable, at the time, of knowing what 
he is doing; but in case of voluntary intoxication a man is not the less responsible 
for the reasonable exercise of his understanding, memory, and will. A drunken 
man, equally with a sober man, is presumed to intend his acts, and the natural and 
ordinary consequences." (Clark's Criminal Law, p. 70.) 

It may be considered as an established principle of law that when a person volun- 
tarily drinks that drunkenness furnishes per se no excuse or palliation for criminal 
acts committed during its continuance and no immunity from the penal consequences 
of such acts. ' ' Where a deliberate purpose or peculiar intent is necessary to constitute 
the offense, intoxication, if clearly shown in evidence to have been such as to have 
incapacitated the party from entertaining such purpose or intent, will ordinarily be 
treated as constituting a legal defense to the specific act charged." C. M. 0. 14, 1910, 
11; 1, 1912, 4. 

Drunkenness resulting in insanity. See Assault, 17. 

23. Same. C. M. O. 104, 1896. 

24. Same— No defense where specific intent not required. CM. O. 8, 1911, 5. 

25. Same— Burden is on party claiming. C. M. 0. 19, 1912, 7. 

26. Degree necessary to constitute "Drunkenness"—" One who is under the influence 

of liquor in any degree, however slight it may be, is unfit to be intrusted with the 
important duties incident to the naval service." C. M. O. 92, 1905, 3. 

27. Same — To support a charge of " Drunkenness, " it is not necessary for the evidence to 

show that the degree of intoxication was so great as to occasion a profound stupor on 
the part of the accused; the universally established practice of the naval service, on 
the contrary, is such as to warrant a finding of guilty of the charge of " Drunkenness ' ' 
when it is proved by reliable witnesses that the accused was under the influence of 
intoxicating liquor; indeed, no other finding would be justifiable. C. M. O. 5, 1913,3. 

28. Same— Manifestly there are different degrees of intoxication. However, officers in the 

naval service should not be guilty of overindulgence which will in any way incapaci- 
tate them for any duties which may be required of them. The fact that an officer 
apparently performs the duties assigned to him at a particular time does not of itself 
indicate that he is capable of performing any duties which might have been assigned 
to him. The degree of intoxication goes to the gravity of the offense, but does not 
relieve an officer of the consequences of his condition if he has been guilty of such 
overindulgence as will incapacitate him for the full performance of his duties. C. M. 
O. 5, 191572. 
29. Desertion— Accused charged with desertion; found guilty of "absence from station 
and duty without leave," but without criminality, and was acquitted. Only evidence 
in extenuation was his uncorroborated evidence that he became drunk while on 
liberty and was taken to sea on the steamship Bohemia. Held, That voluntary 
drunkenness furnishes no excuse or palliation for original acts. The department can 
not admit that a man should be acquitted of desertion who absents himself from his 
station and duty for nearly seven months, whose only excuse was his own drunken- 
ness at the time of leaving. Proceedings were disapproved and accused discharged 
as an independent proceeding. C. M. O. 11, 1905. See also Absence from Station 
and Duty after Leave had Expired, 9, 10; C. M. O. 30, 1910, 10. 
30. Dismissal— "Every naval officer, and especially a medical officer, whose use of intoxi- 
cants is carried to such an extent that his superiors cause him to be tried and who is 
convicted of drunkenness on duty should be sentenced to dismissal from the Navy, 
and sucn sentence should be inexorably carried into execution. Whatever charity 
or assistance may be extended to such officers should be given when they reach some 



DRUNKENNESS. 195 

other walk in life than the naval service. They are worthless members of their pro- 
fession, and should, in every case, be forced off the list of officers of the Navy." C. 
M. O. 34, 1884, 3; 101, 1906, 2. See also C. M. O. 22, 1884, 3. 

31. Dissipation. C. M. O. 22, 1884, 3; 132, 1897, 3. See also Drunkenness, 70, 76. 

32. Duty— Drunkenness on duty. See Drunkenness on Duty. 

33. Enlisted men— Charged with. C. M. O. 47, 1910, 8; 23, 1910, 5; 25, 1914, 3. See also 

C. M. O. 5, 1914, 4. 

34. Evidence of — A medical officer who examined the accused testified: "He was further 

examined by me at the time, and it was soon evident in my opinion that he was suf- 
fering from the excessive use of alcoholic liquor. This was evidenced by his general 
manner and deportment, his unsteadiness, sluggish reaction of both his pupils, his 
tremulous tongue, pulse of 112, odor of alcohol on his breath, and his own acknowl- 
edgment that he had been out drinking the night before." Also, "10. Q. Doctor, 
would you say that you considered this accused under the influence of liquor? — A. 
Yes; and I didn't consider him fit to perform his duty that day, and so reported." 
C. M. O. 28, 1915, 2. 

35. Excess, danger of. See Drunkenness, 18. 

36. Excuse — The department can not concede that intoxication forms any excuse for fail- 

ure to render prompt and implicit obedience to orders from superior officers. C. 
M. O. 77, 1906. 

37. Expert witness — A naval surgeon, an expert, stated, in effect, that no other drug than 

alcohol would account for the condition of the accused. C M. O. 36, 1898, 2. 

38. Finding— The word "intoxicated" for the word "drunk." C. M. O. 53, 1905, 1. 

39. Same— The words "intoxicants or drugs" substituted for the words "intoxicating 

liquor." C. M. O. 62, 1904. 

40. Fraudulent enlistment. See Fraudulent Enlistment, 23, 24. 

41. Functions, official — Naval officers in the ordinary routine of service are compelled 

to attend official functions, and the fact that intoxicating drink is offered is no reason 
for acceptance and no excuse for excess. File 26262-198, J. A. G., Nov. 3, 1908, p. 4. 
See also Clemency, 37, 38; Smoker. 

42. Gin. See C. M. O. 56, 1880. 

43. Guard — Drunkenness on guard. See Drunkenness on Guard. 

44. Guest of club— Aggravates offense of drunkenness. C. M. O. 9, 1906, 1. 

45. Hang-over. C. M. O. 22, 1884, 3; 132, 1897, 3. Seealso Drunkenness, 61. 

46. Habitual use of— "The habitual and excessh^ use of stimulants, by which the facul- 

ties are gradually but surely undermined, is inexcusable in any person in any walk 
of life; in an officer of the Navy, frequently charged with duties involving the safety 
of his vessel and all on board, no palliation should be considered or given weight. 
If he undertakes to discharge such duties, he is liable, at a critical moment, to fail 
in their performance and to bring about terrible disaster; if he is unable, by reason 
of his habits, to even attempt their performance, he throws upon others a" burden 
which properly belongs to him. Whether the disability is caused by intoxication 
at the time or is the result of previous dissipation, is a question of secondary impor- 
tance. In either case it is the consequence of willful misconduct, and deserving of 
unqualified censure." C. M. O. 22, 1884, 3. 

47. "Habitually drunk on duty "—Enlisted man— Charged with. C. M. O. 40, 1SSS. 

48. "Having liquor in his possession" — Enlisted men— Charged with. C. M. O. 63, 

1892; 64, 1892. 

49. Intent— "As regards intoxication, it is the established principle of law that voluntary 

drunkenness furnishes per se no excuse or palliation for criminal acts committed dur- 
ing its continuance and no immunity from the penal consequences of such acts. 

"But, on the other hand, there are crimes which can be consummated only where 
a peculiar and distinctive intent, or a conscious deliberation or premeditation, has 
concurred with the act, which could not well be possessed or entertained by an intoxi- 
cated person. Thus in cases of such offenses as larceny, robbery, or burglary, which 
require for their commission a certain specific intent, evidence of drunkenness is 
admissible as indicating whether the offender was capable of entertaining this intent . 
or wnether the act was anything more than a mere battery, trespass." or mistake. 
And so it is held that where a peculiar intent is necessary to constitute the offense, 
drunkenness, if clearly shown in evidence to have been such as to have incapacitated 
the party from entertaining such purpose or intent, will ordinarily properly be t reated 
as constituting a legal defense to the specific act charged." C. M. . 42, 1909, 10. S < 
also C. M. O. 86, 1S98, 1. But see C. M. O. 20, 1913. I. 



196 DRUNKENESS. 

50. Same— An accused was charged with "assault with intent to kill," and "assaulting 

with a deadly weapon and wounding another person in the service." 

While it was shown that the accused, at the time of the stabbing, was under the 
influence of intoxicating liquor, it was not shown that he was so far intoxicated as to 
be disabled from entertaining the degree of intent required. The fact that one was 
drunk at the time of the commission of the act will, in certain eases, constitute a good 
defense, but such is a matter of defense only, and the burden of proving drunkenness 
is upon the party claiming such to be the fact. " It is a well-settled general rule that 
voluntary drunkenness at the time a crime was committed is no defense. If a person 
voluntarily drinks and becomes intoxicated, and while in that condition commits an 
act which would be a crime if he were sober, he is fully responsible unless his drunken- 
ness has resulted in insanity, or unless it rendered him incapable of entertaining a 
specific intent which is an essential ingredient of the offense." (12 Cyc, 170 et seq.) 
Drunkenness will be a defense in those crimes in the commission of which a specific 
intent is requisite, but it must be shown that the accused "was by drink so entirely 
deprived of his reason that he did not have the mental capacity to entertain the neces- 
sary specific intent required to constitute the crime" (12 Cyc, 172), and the burden 
of showing such to have been the case, being a matter of defense merely, rests upon 
the defendant. A resume of the evidence as to the drunkenness of the accused at the 
time of the stabbing will, it is believed, fail to disclose that his drunkenness had 
resulted "in insanity" or that he was "so entirely deprived of his reason as to be 
thereby rendered incapable of entertaining the specific intent requisite to constitute 
the crime." C. M. 0. 19, 1912, 7. See also Assault, 17. 

51. Same— " Where the question is whether words have been uttered with a deliberate 

purpose or are merely low and idle expressions, the drunkenness of the person uttering 
them is proper to be considered." (.3 Greenleaf, sec. 6, p. 10.) "Intoxication is now 
very generally held to be admissible, not to excuse a crime but as bearing upon the 
question of mental capacity to entertain express malice, or to exercise deliberation, 
or the actual presence of a deliberate intent in the mind of the prisoner at the time 
of the act." (Greenleaf on Evidence.) 

Where, therefore, the actual existence of any particular purpose, motive, or intent 
is a necessary element to constitute a particular species of crime or degree of criminality, 
the fact that the accused was intoxicated at the time may be taken into considera- 
tion in determining the purpose, motive, or intent with which he committed the act. 
(3 Greenleaf on Evidence, p. 10, note.) 

Drunkenness, if clearly shown in evidence to have been such as to have incapacitated 
the party from entertaining sur-h purpose or intent, will ordinarily be properly treated 
as constituting a legal defense to the specific act charged. It might be remarked, 
however, that if the drunken act has involved a disorder or neglect of duty prejudicial 
to good order and discipline, and such will almost invariably be the fact, the accused 
may be convicted of an offense under the latter charge. ( Winthrop's Military Law, 
2d ed., p. 441.) C. M. O. 14, 1910, 15-16. See also C. M. O. 47, 1910, 8; 19, 1895, 2-3. 
I 52. Same— While it is an established principle of law that voluntary drunkenness fur- 
nishes per se no excuse or palliation for criminal acts committed during its contin- 
uance, yet in military law, whera a deliberate purpose or peculiar intent is necessary 
to constitute the offense, as in the cases of disobedience of orders, drunkenness, if 
shown in evidence to have beeo. such as to have incapacitated the party from enter- 
taining such purpose or inten , will ordinarily properly be treated as constituting a 
legal defense, etc. C. M. O. 86, 1898, 1. 

53. Intoxicated— The word "intoxicated" was substituted for the word "drunk." C. 

M. O. 53, 1905, 1. 

54. Involuntary. C. M. O. 14, 1910, 10. 

55. Judge advocate — Tried by general court-martial for being drunk. C. M. O. 57, 1880; 

104, 1896; 2, 1913. See also Judge Advocate, 83-85. 

56. Larceny— Drunkenness as a defense. C. M. O. 42, 1909, 10. See also Drunkenness, 

22, 49, 89. 

57. Medical officers — Might be called at any time to render professional services of vital 

importance, and if they are under the influence of an intoxicant they would be inca- 
pacitated for such duty. C. M. O. 43, 1915, 2. See also Drunkenness, 30. 

58. Same— Should never become intoxicated. C. M. O. 101, 1906, 2. See also Drunken- 

ness, 30. 

59. Midshipmen— Charged with. C. M. O. 3, 1909; 7, 1912; 8, 1912. 

60. Murder— Drunkenness as a defense. C. M. 0. 1, 1912, 4. See also Drunkenness, 22. 



DRUNKENNESS. 197 

61. Night before — That the accused had been, as shown by his testimony, under the in- 

fluence of liquor the evening before certainlv can not be deemed an excuse for being 
drunk on duty the day after. C. M. O. 39/1909, 1. See also Drunkenness, 45. 

62. Officers— Charged with. C. M. O. 4, 1909; 56, 1910; 16, 1910; 25, 1911; 4, 1912; 9, 1912; 

27, 1912; 38, 1912; 15, 1913; 21, 1913; 31, 1913; 36, 1913; 40, 1913; 6, 1914; 7, 1914; 8, 1914; 
11, 1914; 17, 1914; 24, 1914; 31, 1914; 43, 1914; 44, 1914; 14, 1915; 33, 1915; 34, 1915; 40, 1915; 
48, 1915; 1, 1916; 18, 1916; 40, 1916; 41, 1916; 1, 1917; 4, 1917; 9, 1917; 11, 1917; 20,1917. 

63. Officer of the deck, drunk. See Drunkenness, 99. 

64. Orders— Drunkenness no excuse for not obeying orders promptly. C. M. O. 77, 1906. 

See also Drunkenness, 36. 
Orders to attend a smoker. See Clemency, 37, 38; Drunkenness, 41. 

65. Paymaster's clerks— Charged with. C. M. O. 37, 1912. 

66. Petty officer— Who periodically gets drunk is worse than useless for the service. See 

Petty Officers, 1. 

67. Plea— Guilty to "Drunkenness" when charged with "Drunkenness on duty." C. 

M. O. 23, 1910, 4. 

68. Pledges. See Pledges and Promises, 2-7. 

69. Post— Drunkenness on post. See Drunkenness on Post; Sentinels, 15, 16. 

70. Previous dissipations. C. M. O. 132, 1897, 3. See also Drunkenness, 31, 76. 

71. Promises to abstain. See Pledges and Promises, 2-7. 

72. Proof of. See Drunkenness, 26-28, 100. 

73. Public opinion— The commander in chief, United States Pacific Fleet, made the 

following remarks in acting upon a case: 

" The general drift of public opinion in the United States to-day shows a marked 
tendency toward repressing the use of intoxicants, and it behooves the officers of the 
naval service to take note of this determination. It has been stated by a naval officer 
of considerable rank, in speaking of this very case, ' If a man can not get drunk in his 
own quarters, where can he get drunk? ' It is possible that the members of the court 
were actuated by the same sentiment and sought to protect an officer in this imaginary 
'right.' On no other hypothesis can the commander in chief reconcile these findings 
with the established facts laid before it in sworn testimony. The commander in chief 
can not subscribe to or approve such doctrine. No officer can get drunk in his quar- 
ters, enter into a disturbance that brings public scandal, disgrace, and death, drags 
the good name of the naval service in the dust in the newspapers and in a whole 
populous community through the publicity of his actions and hope to avoid being 
held to a strict accountability therefor. The action of the court in this case shoves a 
decided lack of appreciation of the honor and dignity of the Navy, but as the com- 
mander in chief has exhausted bis power in the premises he can only place the evidence 
of his disagreement on the record." C. M. O. 5, 1913, 4. 

74. Punishment for— Should be dismissed. C. M. O. 101, 1908, 2. See also Drunken- 

ness, 30. 

75. Quarters, drunk in. C. M. O. 5, 1913, 4. See also Drunkenness, 73. 

76. Reprehensible — An officer was charged with and found guilty of " Absence from duty 

without leave" and " Scandalous conduct tending to the destruction of good morals," 
the specification under the latter charge alleging that the accused was, in consequence 
of the excessive use of intoxicating liquor, incapacitated for the proper performance 
of his duty to such a degree as to warrant his being placed on the sick list for exhaus- 
tion after debauch. 

The department, among other things, stated: "The offense, while laid under the 
formal charges" as above stated "was essentially intoxication, carried, as set forth 
in the specification of the second charge, to such an extent as to produce incapacity 
for the proper performance of duty. Such an offense is a grave one. The excessive 
use of intoxicating liquor by any person in any walk of life is reprehensible. In the 
case of an officer of the Navy, frequently charged with duties involving the safety of 
his vessel and all on board, it is inexcusable. If an officer in such a condition under- 
takes to discharge his duties he is liable, at a critical moment, to fail in their perform- 
ance and to bring about disaster; if unable even to attempt their performance he 
throws upon others a burden which properly belongs to him; and whether such 
inability is caused by intoxication at the time,"or, as appears to have been the case in 
the present instance, is the result of previous dissipation, is of secondary importance." 
C. M. O. 132, 1897, 2-3. 

77. Resign, ought to— In a case where an officer was found guilty of "Drunkenness," 

being unable to execute his duty as watch and division officer because of debauches 
and dissipation and was not sentenced to dismissal, the department stated in part: 



198 DRUNKENNESS. 

"The Navy Department can never safely again order" the accused "to the perform- 
ance of sea duty; he will be an encumbrance upon the active list, and ought to resign 
from a high and honorable profession, the appropriate duties of which he can never be 
allowed to discharge except by putting in unjustifiable peril the ships and lives of the 
United States Navy." C. M. O. 22, 1884, 3. 

78. Resisting arrest— Effect of drunkenness on. C. M. O. 23, 1910, 5-6. 

79. Robbery— Drunkenness as a defense. C. M. 0. 42, 1909, 10. Seealso Drunkenness, 49. 

80. Scandalous conduct tending to the destruction of good morals— Officer tried 

for being drunk. C. M. O. 23, 1886. 

81. Seditious words, uttering— Defense of drunkenness. C. M. O. 14, 1910, 14-15. See 

also Sedition. 

82. Sentinel posted when intoxicated. See Sentinels, 15, 16. 

83. Serious offense— In one case the department stated: "He must not think that the 

department condones in any way the commission by officers in the Navy of offenses 
such as those of which he acknowledges himself to be guilty. The offense of overin- 
dulgence in intoxicants is a most serious one and goes far toward showing that the 
usefulness to the Navy of one who is guilty of it is approaching its end." C. M. O. 
118, 1905, 2. 

84. Sick list— The department has decided that " if an officer is at any time unfit for duty, 

due wholly or in part to overindulgence in intoxicants, it is entirely immaterial 
that he may not at such time have been required to perform any particular duty, or 
that he placed himself in such condition of unfitness after the customary hours for 
the performance of usual duties by him. It is axiomatic that an officer in a military 
service is subject to duty at all times, unless he is wholly incapacitated for the per- 
formance of any duty. It might indeed be only under very exceptional circumstances 
that an officer on the sick list would be called upon to perform an act of duty, but 
such circumstances are not inconceivable. Certainly no officer, because of the fact 
that he is on the sick list and therefore not required to perform his ordinary duty, 
is justified in rendering himself altogether unfit for duty by overindulgence in intoxi- 
cating liquor." (File 26251-8280; G. C. M. Rec. No. 28798). 

Nor does the department consider that the fact that the incapacity of an accused for 
the proper performance of duty, which the court finds was due to his being "under 
the influence of intoxicating liquor, " is mitigated by the fact that his incapacity may 
have been due in part to "his physical condition. " The fact being definitely estab- 
lished that an officer was "under the influence of intoxicating liquor, and thereby 
incapacitated for the proper performance of duty, " it must be at best merely a matter 
of speculation as to what extent, if any, his incapacity may have been caused by 
the fact that he was sick — though not on the sick list. 

Accordingly, the. fact that the condition of the accused in this case, as established by 
the court's findings under charge I, may have been in part due to his physical condition, 
was not regarded by the department as a sufficient basis for the exercise of clemency. 
C. M. 0. 19, 1915, 8. 

85. "Solitary drinker." See C. M. O. 24, 1914, 15, 17, 19. 

86. Specific Intent— Effect of drunkenness. See Drunkenness, 49-52; Intent, 19. 

87. Subduing a drunk— The department stated with reference to a case where an en- 

listed man was found guilty of drunkenness, refusing to obey orders, resisting arrest, 
threatening to kill his superior officer, and disrespectful m language, etc., "It is 
observed, in addition to the foregoing, that the officer of the deck whose order was 
disobeyed, although he says that the accused plainly showed by his conduct while at 
the mast that he was under the influence of liquor, nevertheless was retained there (in- 
stead of, under the circumstances, sending him forward in charge of police of the 
vessel until the arrival of the executive officer) and, further, that the executive officer 
was personally present after the accused had been taken below to the brig and placed 
in double irons, and participated in the throwing of salt water on him or pouring 
it in his mouth as variously stated, for the purpose of pacifying him. " In view of 
the foregoing all of the sentence was remitted except dishonorable discharge. C. 
M. O. 86, 1898, 1-2. See also Drunkenness, 6, 90. 

88. Theft— Drunkenness as a defense. C. M. O. 42, 1909, 10. See also Drunkenness, 20, 

22, 24, 49, 51, 52. But see C. M. O. 20, 1913, 4. 

89. Same — Where there was no evidence to show that the accused was sufficiently sober 

to harbor an intent to permanently deprive the owner of the property taken, which 
is a necessary ingredient of the offense, the finding of guilty on a charge of " Stealing 
property of the United States, furnished and intended for the naval service thereof" 
was disapproved by the department. C. M. O. 25, 1914, 3. Seealso Burglary, 3; 
Drunkenness, 49; 'Intent, 2, 5. 



DRUNKENNESS. 199 

90. Treatment of a drunk. C. M. 0. 80, 189S, 1-2. See also Drunkenness, 6, 87. 

91. "Unfit lor duty"—" One who is under the influence of liquor in any degree, however 

slight it may be, is unfit to be intrusted with the important duties incident to the 
naval service. " C. M. O. 92, 1905, 3. 

92. Unfit for the Navy. C. M. O. 22, 1884, 3; 132, 1897, 3. See also Drunkenness, 77. 

93. Using abusive, obscene and threatening language toward his superior officer- 

Effect of drunkenness on. CM. 0.23, 1910,5-6. 

94. Uttering seditious words— Effect of drunkenness upon. C. M. O. 14, 1910, 14-15. 

See also Sedition. 

95. Vermouth. See C. M. O. 56, 1880. 

96. Voluntary drunkenness— "It is a well-known principle of law that a man avIio 

voluntarily puts himself in a condition to have no control of his actions must be held 
to intend the consequences." C. M. O. 92, 1905, 3. 

97. Warrant officers— Charged with. C. M. O. 32, 1910; 17, 1912; 18, 1912; 24, 1912; 3. 1913; 

5, 1913; 13, 1913; 10, 1914; 40, 1914. 

98. Warrant officers (commissioned)— Charged with. C. M. O. 20, 1910; 21, 1910, 16; 

33, 1910; 1, 1911; 18, 1911; 32, 1912; 12, 1914; 21, 1914; 37, 1914; 48, 1914; 23, 1915; 25, 1915; 
28, 1915; 36, 1916; 38, 1916. See also C. M. O. 16, 1914. 

99. Watch officer drunk— "Few men have a greater responsibility of property, lift, and 

national honor immediately resting upon them than a watch officer of a vessel of war 
while at sea. An officer who is guilty of drunkenness, when liable to be called upon 
to assume this responsibility, commits a crime of the gravest nature, for the conse- 
quences of his crime may be fatal to his ship and to all on board." C. M. . 22, 1884, 2. 
100. Weight of evidence — In a case where a pay inspector was acquitted by general court- 
martial on the charge of "Drunkenness on duty" the convening authority stated: 
"It is the opinion of the reviewing authority that the court, in arriving at its finding, 
erred in not assigning sufficient weight to the very positive testimony of the officers 
who made an examination of the accused with the special object of ascertaining his 
condition. Undue weight must have been given also to the performance of routine 
duties, and to the negative testimony of casual observers." C. M. 0. 16, 1908. 

DRUNKENNESS ON DUTY. 

1. Enlisted men— Charged with. C. M. O. 23, 1910, 4; 10, 1911, 3; 29, 1913, 5. 

2. Officers— Charged with. C. M. O. 8, 1909; 39, 1909; 44, 1909; 22, 1911; 11, 1912; 34, 1912; 

2, 1913; 19, 1913; 11, 1914; 17, 1914; 19, 1915. 

3. Same— "For a commanding officer in the Navy to allow himself to become intoxicated 

is bad enough, but to be drunk on duty is intolerable." C. M. O. 33, 1889, 3. 

Officer tried by general court-martial for being drunk when making a boarding call. 
CM. 0.39, 1909. 

An officer who was recommended for trial by general court-martial for "Drunken- 
ness on duty" received a letter of public reprimand from the Secretary of the Navy 
in lieu of trial. File 26251-8826. (M. C File 3493-62.) 

4. Specification— It is essential that the specification under a charge of "Drunkenness on 

duty" should allege either the nature of the duty or at least contain the words "on 
duty," as, otherwise, only "Drunkenness" is alleged and not the more serious charge 
of ''Drunkenness on duty." C M. O. 23, 1910, 4. 

5. Warrant officers— Charged with. C M. 0. 12, 1909; 3, 1911, 1, 2; 24, 1913. 

6. Warrant officers (commissioned)— Charged with. C M. O. 20, 1911; 33, 1911; 17, 

1912; 11, 1913; 18, 1914; 21, 1917. 

DRUNKENNESS ON GUARD. 

1. Enlisted men— Charged with. C. M. O. 42, 1909, 3; 16, 1912, 3. 

DRUNKENNESS ON POST. 

1. Enlisted men— Charged with. C M. O. 5, 1911, 4; 7, 1911, 3. 

DRY DOCKS. 

1. Enlisted man— Fell into dry dock and killed. See Line of Duty and Misconduct 

Construed, 50. 

2. Floating dry docks— "A floating dry dock, the same as a vessel, is constructed with a 

view to its removal at such times and to such places as may be deemed necessary or 
advis able, and, as shown by the general trend of legislation extending through a long 
period of years, it has not been the policy of the Congress to place restrictions upon the 
power of the executive as to the one any more than as to the other. File 4670-47. 
J. A. G., Nov. 23, 1910, p. 4. 



200 DRY DOCKS. 

3. Olongapo, P. I.— Floating steel dry dock. File 4670-47, J. A. G., Nov. 23, 1910, p. 4. 

4. Removal— Of floating dry dock from Algiers to Guantanamo. File 4670-47, J. A. G. 

Nov. 23, 1910. 

DRY TORTUGAS. 

1. Pilotage of vessels— Entering the naval channel, Dry Tortugas. 13 J. A. G., 371, 
Oct. 8, 1904. 

"DUE FORM AND TECHNICALLY CORRECT." See Court, 14, 73. 

DUE PROCESS OF LAW. 

1. Discharge of officer— For failing morally to qualify for promotion. File 26260-1392, 

J. A. G., June 29, 1911, p. 31. See also Naval Examining Boards, 10; Promotion, 64. 

2. Orders to pay debts— An order to pay debts is taking money without due process of 

law. See Debts, 18. 

DUELS. See also Words and Phrases. 

1. General court-martial— Two officers were tried by general court-martial. One for 

sending a written message in the nature of a challenge and the other for bearing the 
same to the party challenged. G. O. 22, Oct. 17, 1863. 

2. Specific intent; — The same principle is set forth by Winthrop (p. 919), in considering 

the offense of sending or accepting a challenge to fight a duel; as showing that the 
absence of intent constitutes a defense, he says: 

"The sending or accepting of a challenge being nrima facie established, the only 
defense'open to the accused, where the facts are not denied, would appear to be that 
a criminal intent was wanting, as, for example, that a serious act was not proposed, 
but that the proceeding was by way of banter or joke." C. M. O. 5, 1912, 12. 

DUMMY. 

1. Paymaster — In a certain case the department stated that when the accused was ordered 
to duty as commissary officer of his ship, it was not the department's intention that 
he should be a mere figurehead or dummy in that position, leaving the actual dis- 
charge of the duties incident thereto entirely in the hands of an enlisted man without 
any supervision worthy of the name. C. M. O. 23, 1913, 13-14. 

DUPLICITY. See Abusive Language Toward Other Persons in the Navy, 1, 2; 
Charges and Specifications, 32. 

DURESS. See Confessions, 9 (p. 102). 

DUTY. 

1. Assignments to duty — "It is the well-digested policy and intention of the department, 
in making assignments to duty, to assign the senior grades of the service to the higher 
and more important positions. This is what the law contemplates and reason and 
propriety demand, and it is most just and fair to all." G. O. 228, Aug. 1, 1877. 

DUTY STATUS. 

1. Enlisted man— On liberty is not on a duty status. C. M. O. 23, 1910, 4. See also Line 
of Duty and Misconduct Construed. 

DYING DECLARATIONS. 

1. Nature and admissibility of— "Dying declarations are statements of material facts 
relating to the cause and attendant circumstances of the declarant's own homicide, 
made by him while in extremis and while under the fixed belief and moral certainty 
that his death is impending and certain to follow almost immediately." (Hughes 
on Evidence, p. 62, sec. 1.) 

Dying declarations are hearsav evidence, but are admitted, as stated by Greenleaf, 
quoting Lord Chief Baron Eyre, because "motive for falsehood is silenced." The 
weight given these declarations has lessened materially, as shown by numerous 
cases. Greenleaf (16th ed., vol. 1, p. 253, sec. 162) states: 

" Weight of declarations.— Though these declarations, when deliberately made, under 
a solemn and religious sense of impending dissolution, and concerning circumstances, 
in respect of which the deceased was not likely to have been mistaken, are entitled 
to great weight, if precisely identified, yet it is always to be recollected that the 
accused has not the power of cross-examination— a power quite as essential to the 
eliciting of all the truth as the obligation of an oath can be; and that where the wit- 
ness has not a deep and strong sense of accountability to his Maker, and an enlight- 



DYING DECLARATIONS. 201 

ened conscience, the passion of anger and feelings of revenge may, as they have not 
infrequently been found to do, affect the truth and accuracy of his statements, 
especially as the salutary and restraining fear of punishment for perjury is in such 
cases withdrawn. And it is further to be considered that the particulars of the 
violence to which the deceased has spoken were in general likely to have occurred 
under circumstances of confusion and surprise, calculated to prevent their being 
accurately observed, and leading both to mistakes as to the identity of persons and 
to the omission of facts essentially important to the completeness and truth of the 
narrative." 

Note.— Phil, and Am. on Evid., 305, 306; 1 Phil. Evid., 292; 2 Johns., 35, 36, 
per Livingston, J.; see also Mr. Evans's observations on the great caution to be 
observed in the use of this kind of evidence; in 2 Poth. Obi., 255 (293); 2 Stark. 
Evid., 263; see also R. v. Ashton, 2 Lewin Cr. Cas., 147, per Alderson, B. (People v. 
Kraft, 148 N. Y., 631.) 

Wigmore (p. 1800, sec. 1432): 

"Rule applicable in certain criminal cases only. (1) The proceeding in which the 
statements are offered may not be a civil case. 

" (2) It must be a public prosecution for the specific crime of homicide. 

"(3) It must be a prosecution not merely for an act which has resulted in fact in 
death but for an offense involving legally the resulting death as a necessary element. 
This limitation is a refinement evolved from the earlier and simpler form of state- 
ment that ' death must be the subject of the charge.' " 

Greenleaf (16th ed., vol. 1, p. 245, sec. 156), quoting numerous cases, states: 

"a. Limitations as to kind of issue, person declaring, and subject of declaration. — It 
was at one time held, by respectable authorities, that this general principle warranted 
the admission of dying declarations in all cases, civil and criminal; but it is now 
well settled that they are admissible, as such, only in cases of homicide, 'where the 
death of the deceased is the subject of the charge, and the circumstances of the 
deceased is the subject of the charge, and the circumstances of the death are the 
subject of the dying declarations.' [(1) As to the issue, (a) the declaration is not 
admissible in a civil case; (6) it is admissible in no other criminal case than a prosecu- 
tion for homicide; even where death is incidentally alleged or involved, as in the 
case of a prosecution for procuring an abortion; (c) the death which is the subject 
of the charge must be the death of the declarant. (2) The subject of the declaration must 
be the circumstances attending or leading up to the death for which the prosecution 
is instituted; for example, the declaration of a husband, killed by the wife's paramour, 
that he had found them m adultery, has been admitted; while the deceased's decla- 
rations as to a prior threat by the defendant have been excluded. (4) On the other 
hand, the declaration is not excluded by the circumstance that there are eyewit- 
nesses to the deed, or other testimony; or that the fact of the killing is conceded by 
the accused.] The reasons for thus restricting it may be that the credit is not in all 
cases due to the declarations of a dying person; for his body may have survived 
the powers of his mind; or his recollection, if his senses are not impaired, may not 
be perfect; or, for the sake of ease, and to be rid of the importunity and annoyance 
of those around him, he may say, or seem to say, whatever they may choose to 
suggest. These, or the like considerations, have been regarded as counterbalancing 
the force of the general principle above stated; leaving this exception to stand only 
upon the ground of the public necessity of preserving the lives of the community 
by bringing manslayers to justice. For it often happens that there is no third 
person present to be an eyewitness to the fact; and the usual witness in other cases 
of felony, namely, the party injured, is himself destroyed. But, in thus restricting 
the evidence of dying declarations to cases of trial for homicide of the declarant, it 
Should be observed that this applies only to declarations offered on the sole ground 
that they were made in extremis; for where they constitute part of the res gestae, or 
come within the exception of declarations against interest, or the like, thev are 
admissible as in other cases, irrespective of the fact that the declarant was under 
apprehension of death." 

Wigmore (p. 1811, sec. 1455) states, citing a large number of cases: 

" Testimonial qualifications {infancy, insanity, interest, recollection, leading questions, 
written declarations, etc.).— Id. general, for testimonial qualifications, the rules to be 
applied are no more and no less than the ordinary ones, already examined (sees. 483- 
812), for the qualifications of other witnesses: 

"1857, Ogden, J., in Donnelly v. State (26 N. J. L. 620): 'Whatever would dis- 
qualify a witness would make such [dying] declarations incompetent testimony.' 



202 DYING DECLARATIONS. 

"1864, Sanderson, C. J., in People v. Sanchez (24 Cal. 26): 'They stand upon the 
same footing as the testimony of a witness sworn in the case, and are governed by 
the same rules, except as to * * * leading questions.' 

"1874, Campbell, J., in People v. Olmstead (30 Mich. 434): 'They [the declarations] 
are substitutes for sworn testimony, and must be such narrative statements as a 
witness might properly give on the stand if living.' 

" 1885, Elliott, C. J., in Boyle v. State (97 Ind., 322; 105 Ind., 470): 'Dying declara- 
tions are admissible in a case* where the evidence would be competent if the declarant 
were on the witness stand. * * * The question here is * * * whether the 
declarant's statement was one that a witness on the stand would have been allowed 
to make.' 

"(1) Insanity, infancy, interest — If the declarant would have been disqualified to 
take the stand, by reason of infancy, insanity, or interest, his extrajudicial declara- 
tions must also be inadmissible. 

"(2) Knowledge— The declarant must have had actual observation or opportunity 
for observation of the fact which he relates. 

"(3) Recollection—The declarant's capacity of recollection, and his actual recollec- 
tion, must have been sufficiently unimpaired to be trustworthy. The allowance of 
leading questions to stimulate recollection is sometimes here said to be by way of excep- 
tion to the general rule against leading questions {ante, sec. 769). But in truth there 
seems to be no exception. The situation is not that of a presumably partisan witness 
offered in court, and questions leading in form will often have to be asked in order to 
obtain the information from a dying person unable to express himself except by a 
brief 'yes' or 'no.' The mere fact, then, that questions leading in form are asked 
does not infringe the principle which forbids the supplying of a false memory {ante, 
sec. 778). There is thus no general rule here against leading questions. Nevertheless, 
where, in a particular case, the interrogators might seem to be really supplying a false 
memory, the answers should be excluded. 

"(3) Communication— {a) Any adequate method of communication, whether by 
words or by signs or otherwise, will suffice, provided the indication is positive and 
definite, and seems to proceed from an intelligence of its meaning: 

"1880, Hines, J., in Mockabee v. Com. (78 Ky. 382): 'Dying declarations are not 
necessarily either written or spoken. Any method of communication between mind 
and mind may be adopted that will develop the thought, as the pressure of the hand, 
a nod of the head, or a glance of the eye.' 

"(&) "When the declaration is in writing, the question may arise whether it is his 
narration at all {ante, sec. 799). If the declarant has written it, or has signed or other- 
wise approved it after reading it, or hearing it read aloud to him, it may be offered as 
his declaration. Otherwise it is not the declaration; and it can not in such a case be 
put in as being itself the dying person's declaration; though it may of course be used 
to refresh the writer's recollection, or may be put in as embodying the writer's recollec- 
tion (under the principles of sees. 744-764* ante). Whether this writing must be offered, 
instead of an auditor's testimony by recollection, is a different question (examined 
post, sec. 1450)." 

It will be observed from the foregoing authorities quoted that a dying declaration 
should not be admitted except in cases where the prosecution is for the crime of some 
form of homicide, and only in such cases where the death of the deceased is the subject 
of the charge. As stated* by Greenleaf, "it is admissible in no other criminal case 
than a prosecution for homicide, even where death is incidentally alleged or involved. " 
C. M. O. 26, 1911, 3-6. See also C. M. O. 49, 1915, 14. 

EFFECTS, DISPOSITION OF. See Deserters, 11, 12; Disposition of Effects. 

EFFICIENCY REPORTS ON OFFICERS. See Reports on Fitness. 

EJUSDEM GENERIS, DOCTRINE OF. 

1. Definition— The doctrine of ejusdem generis is that where an enumeration of specific 
things is followed bv some more general word or phrase, such general word or phrase 
is to be held to refer to things of the same kind. (Spalding v. People, 172 111., 40, 49; 
49 N. E., 993, 995.) 

Where general words follow particular ones, the rule is to construe the former as 
applicable to persons or things ejusdem generis. This rule has been stated, as applied 
to the word "other" as follows: Where a statute, or other document enumerates 
several classes of persons or things, and immediately following and classed with such 
enumeration the clause embraces "other" persons or things, the word "other" will 



EJUSDEM GENERIS. 203 

generally be read as "other such like," so that persons or things therein comprised 
may be read as ejusdem generis with and not of a quality superior to or different from 
those specifically enumerated. C. M. O. 21, 1910, 10. 

2. Same — It is a familiar principle of construction that where words of special and restricted 

meaning or application are followed by words of general import, the latter words are 
intended to embrace only such things or matters as are similar to those specifically- 
mentioned. But this rule is not inflexible and is subject to some qualifications. For 
example, it has been held that this principle, i. e., that of ejusdem generis, does not 
apply when the particular or specific words or terms exhaust the whole class covered 
thereby, and that in such a case the general words or expression may be held to refer 
to some larger or different class. (26 A. & E. Enc, 610.) 

As the rule is elsewhere stated: The words "other" or "any other" following an 
enumeration of particular classes are therefore to be read as "other such like" and to 
include only others of like kind or character. (36 Cyc. , 1120. ) But it is also said that 
the principle does not apply "where the specific words embrace all objects of their 
class, so that the general words must bear a different meaning from the specific words 
or be meaningless." (36 Cyc, 1122.) File 27231-34, J. A. G., Apr. 25, 1911, 5. See also 
File 24482-34, J. A. G., May 1, 1911, 14; Statutory Construction and Interpre- 
tation, 85. 

3. Limitation— "The rule is subject to the limitation that where the particular word by 

which the general word is preceded was inserted, not to give a coloring to the general 
word but for a distinct object, the general word ought to govern." (State v. Brod- 
erick, 7 Mo. App., 19, 20.) File 26254-78, J. A. G ., July 24, 1908, p. 2. 

ELOPERS. See Enlistments, 18; Marine Corps, 29. 

ELOPING. 

1. Enlisted men— Of Marine Corps before final enlistment. See Marine Corps, 29. 

2. Officer — A married officer charged with enticing a young girl to elope with him, under 

"Scandalous conduct tending to the destruction of good morals." C. M. O. 55, 1894. 

EMBEZZLEMENT. 

1. Acquittal— Effect on financial responsibility of accused. C. M. O. 39, 1913, 11-12. See 

also Embezzlement, 25 (p. 210). 

2. Same — Evidence necessary — Government to prove misappropriation or negligence- 

Necessity of rule. C. M. O. 39, 1913, 9. See also Embezzlement, 25. 

3. Burden of proof— Authorities hold that accused must satisfactorily explain shortage. 

C. M. O. 39, 1913, 5. See also Burden of Proof, 4, 5; Embezzlement, 25. 

4. Common law — Embezzlement is unknown to the common law. See Embezzle- 

ment, 7. 

5. Constitutionality of embezzlement laws — Is unquestioned since there are numer- 

ous other laws making certain acts crimes regardless of the intent of the person com- 
mitting the act. For a recital of such laws, see File 28251-3252, J. A. G., Apr. 26, 
1910, p. 13. As concerns the constitutionality of the embezzlement laws, it is the 
duty of the Executive to enforce all acts of Congress until such acts have been held 
unconstitutional by the only tribunal which is authorized to pass final judgment 
thereon. File 26251-3252, J. A. G., Apr. 26, 1910. 

6. Convert— Immaterial whether the money be converted by the accused to his own 

use. See Embezzlement, 7, 25. 

7. Definitions— Embezzlement is a purely statutory offense, unknown to the common 

. law. It is defined (as to public officers) in sections 87-92, act March 4, 1909 (35 Stat .. 
1088, 1105), which superseded sections 5488-5492, R. S., on January 1, 1910. File 
26251-3252, J. A. G., Apr. 26, 1910. 

Congress_ has included in the definition of embezzlement many acts and omissions 
by disbursing officers of the Government which were not included in the popular un- 
derstanding of that crime. C. M. O. 4, 1913, 6. 

Section 87 of the Criminal Code, forbids the withdrawal of public money "for 
any purpose not prescribed by law," and also forbids any disbursing officer of the 
United States to convert such money in any maimer to his own use. C. M. O. 4. 
1913,8. 

Embezzlement is defined by Bouvier to be "the fraudulent appropriation to one's 
own use of the money or goods intrusted to one's care by another." This definition, 
generally accepted by the authorities, is applicable to ordinary oases of embezzlement 
by bank officials, treasurers of corporations, and the like, and holds good wherever 
the statutes do not intervene to modify it. Bouvier adds, however: " Embezzlement 
being a statutory offense, reference must be had to the statutes of the jurisdiction for 



204 EMBEZZLEMENT. 

the classes of persons and property affected by them." In the American and English 
Encyclopedia of Law (vol. 5, p. 496) , it is said that ' ' an indictment for embezzlement 
charging the crime substantially in the terms of the statute is sufficient." C. M. 0. 
4, 1913, 21. 

Where a pay officer fails to render his accounts as required by law, and is negligent in 
the care of public money, in consequence of which such money is lost, it is not necessary 
to prove that the money was converted by the officer to his own use, or that he enter- 
tained an intent to defraud the United States; the mere failure sifel'y to keep and ac- 
count for public money being embezzlement unJer the law. (Criminal Code, sees. 
87-92, 35 Stat., 1088, 1105.) File 20251-3252, J. A. G., Apr. 20, 1910. 

Article 14 of the Articles for the Government of the Navy provides that— 

" Fine and imprisonment, or such other punishment as a court-martial may adjudge, 
shall be inflicted upon any person in the naval service of the United States * * * 
who steals, embezzles, knowingly and willfully misappropriates, applies to his own use 
or benefit, or wrongfully and knowingly sells or disposes of any ordnance, arms, equip- 
ments, ammunition, clothing, subsistence stores, money, or other property of the 
United States, furnished or intended for the military or naval service thereof * * *." 

It will be noted that this article merely uses the word "embezzles" without giving 
any definition thereof, so that for the circumstances which will constitute the offense 
under the article in question information must be sought in other statutes of the 
United States, embezzlement being a purely statutory offense unknown at common 
law. Recourse is accordingly had to section 87-92 of the act of Congress approved 
March 4, 1909 (35 Stat. 10S8, 1105), which define embezzlement by public officers. 
These sections, which on January 1, 1910, superseded sections 5488-5492 of the Re- 
vised Statutes, read as follows: 

"Sec. 87. Whoever, being a disbursing officer of the United States, or a person act- 
ing as such, shall in any manner convert to his own use, or loan with or without inter- 
est, or deposit in any place or in any manner, except as authorized by law, any public 
money intrusted to him; or shall, for any purpose not prescribed by law, withdraw 
from the Treasurer or any assistant treasurer, or any authorized depositary, or trans- 
fer, or apply, any portion of the public money intrusted to him, shall be deemed guilty 
of an embezzlement of the money so converted, loaned, deposited, withdrawn, trans- 
ferred, or applied, and shall be fined not more than the amount embezzled, or impris- 
oned not more than ten years, or both. 

"Sec. 88. If the Treasurer of the United States, or any assistant treasurer, or any 
public depositary, fails safely to keep all moneys deposited by any disbursing officer or 
disbursing agent, as well as all moneys deposited by any receiver, collector, or other 
person having money of the United States, he shall be deemed guilty of embezzlement 
of the moneys not so safely kept, and shall be fined in a sum equal to the amount 
of money so embezzled and imprisoned not more than ten years 

"Sec. 89. Every officer or other person charged by any Act of Congress with the safe- 
keeping of the public moneys, who shall loan, use, or convert to his own use, or shall 
deposit in any bank or exchange for other funds, except as specially allowed by law, 
any portion of the public moneys intrusted to him for safekeeping, shall be guilty of 
embezzlement of the money so loaned, used, converted, deposited, or exchanged, and 
shall be fined in a sum equal to the amount of money so embezzled and imprisoned 
not more than ten years. 

"Sec. 90. Every officer or agent of the United States who, having received public 
money which he is not authorized to retain as salary, pay, or emolument, fails to ren- 
der his accounts for the same as provide! by law shall be deemed guilty of embezzle- 
ment, and shall be fined in a sum equal to the amount of the money embezzled and 
imprisoned not more than ten years. 

"Sec. 91. Whoever, having money of the United States in his possession or under 
his control, shall fail to deposit it with the Treasurer, or some assistant treasurer, or 
some public depositary of the United States, when required so to do by the Secretary of 
the Treasury, or the head of any other proper department, or by the accounting officers 
of the Treasury, shall be deemed guilty of embezzlement thereof, and shall be fined in 
a sum equal to the amount of money embezzled and imprisoned not more than ten 
years. 

"Sec. 92. The provisions of the five preceding sections shall be construed to apply 
to all persons charged with the safekeeping, transfer, or disbursement of the public 
monev, whether such persons be indicted as receivers or depositaries of the same." 
C. M.*0. 4, 1913, 15-17. 



EMBEZZLEMENT. 205 

The foregoing sections, it will be noted, do not prescribe that the acts specified must 
have been done "knowingly" or "intentionally," or "willfully" or "fraudulently"; 
nor do they contain any other words of similar import. C. M. O. 4, 1913, 17. 

8. Delay in depositing— A mere delav in depositing is embezzlement. File 26251-3252, 

J. A. G., Apr. 26, 1910. See also Embezzlement, 18. 

9. Disbursing officers. See Disbursing Officers; Pay Officers. 

10. Exchange for other funds— It appears in connection with the facts stated in speci- 

fication 1 of the first (sic) charge that the accused willfully withdrew from the assist- 
ant treasurer of the United States at New York Government funds for the purpose 
of cashing a certificate of deposit as an accommodation to a personal friend, this being 
for a purpose not prescribed by law, and therefore covered by the second clause of 
section 87 of the code. Such transaction also appears to be in violation of the provi- 
sion of section 89 against the "exchange for other funds, except as specially allowed 
by law," of a portion of the public moneys intrusted to such an officer for safe-keeping. 
C. M. O. 4, 1913, 51-52. 

11. Failing "safely to keep"— A finding of the facts alleged in the specification proved 

will justify a finding of the entire specification proved. Therefore, if the facts in the 
specification are proved it would be improper for the court to find the words of 
description added to the specification not proved. A disbursing officer, therefore, 
who fails "safely to keep" funds intrusted to his care is guilty of embezzlement. 
File 26251-3252, J. A. G., Apr. 26, 1910. 

12. Same— The contention of the accused was that he had left his safe unlocked and that 

Government funds contained therein were stolen by some party unknown. Never- 
theless, under the broad provisions of section 88 of the Criminal Code the pay officer 
was convicted of embezzlement for failing "safely to keep" said funds, although 
evidence was not available to show misappropriation by the accused himself. Sub- 
sequently, after the trial had been completed, additional evidence was secured, 
resulting in a confession by the accused that the funds had been used by himself 
for private purposes and the defense above mentioned concocted to evade criminal, 
responsibility. Had it not been for the statutory provisions covering his case, the 
accused might have escaped all punishment or received a light sentence for "Neglect 
of duty." C. M. O. 4, 1913, 6. 

13. Same— By the express terms of the law, any of the officers named who "fails safely to 

keep" public money intrusted to him for safe-keeping, transfer, or disbursement, 
"or who fails to render his accounts for the same as provided by law," is guilty of 
embezzlement. C. M. O. 4, 1913, 18. 

14. Felonious— It is error in a finding that the accused did not feloniously embezzle, but 

did embezzle, since if the facts proved establish a felony, then the crime was com- 
mitted feloniously. But the court might take into consideration in the sentence 
the difference between technical embezzlement and embezzlement with intent to 
defraud. C. M. O. 30, 1910, 7. See also G. C. M. Rec. 22271; 23082; 23461; 24017; 
24221; 24222. But see Adequate Sentences, 3; Clemency, 13. 

15. Intent — The intent of the officer, whether innocent or fraudulent, enters in no manner 

into the statutory offense. If his act of withdrawal, application, etc., of the funds 
is simply one not authorized by existing law, he is guilty of the crime here defined 
by Congress. His intent, if innocent, may perhaps be considered in mitigation of 
punishment, but can not be relied upon as a legal bar against conviction. The 
offense created by this act belongs to the class known as mala prohibita, but it is 
upon the repression of this class of offenses that the safety of the public treasurv 
largely depends. C. M. O. 4, 1913, 8. 

All that appears to be required to constitute a violation of a statute of this kind 
is that the defendant should have intended to do the prohibited act. C. M. O. 4, 1913. 

16. Same— Implied by negligence— Criminal intent to commit embezzlement is implied 

by the negligence of the pay officer safely to keep the funds intrusted to his care. 
The offense may be complete without any actual embezzlement of money, but in 
the failure to comply with the direction of deposit of regulations of the head of the 
proper department. 

But a pay officer would not be considered as civilly liable where the loss of public' 
money under his care occurs in any way while the officer was in line of duty and 
free from fault, such as loss by breaking a safe in the daytime, loss from a train 'while 
in motion, failure of a bank, loss by fire; while relief has been granted in several 
cases for loss by robbery. Such officer can bring his action for said relief before the 
Court of Claims, pursuant to Tl. S., 1059 and 1062. 

Any negligence, however slight, on the part of the disbursing officer makes him 
guilty of embezzlement. File 26251-3252, J. A. G., Apr. 26, 1910; C. M. O. 4, 1913. 



206 EMBEZZLEMENT. 

17. Marking checks as exchanged for cash— So also the ease with which disbursing 

officers could evade substantial punishment for misappropriation of Government 
funds by marking checks as exchanged for cash, and contending upon discovery 
that it was intended to replace said funds at some later date, renders it absolutely 
imperative that all laxity and irregularity in dealing with public money intrusted 
to their care should be severely dealt with. C. M. O. 4, 1913, 6. 

18. Negligence— Any negligence, however slight, on the part of the disbursing officer makes 

him guilty of embezzlement. It is immaterial whether the money be converted by 
him to his own use, or stolen by others as the result of his negligence, or whether it is 
still in his possession but deposited in a bank or other place not specified by law, or 
retained in his actual custody when it should be deposited in some public depositary, 
or in his possession but not accounted for as required by law. A mere delay in de- 
positing money is embezzlement. File 26251-3252, J. A. G., Apr. 26, 1910, 8-9. • 

19. Officers— Charged with. C. M. 0. 18, 1907; 38, 1907; 39, 1908; 17, 1915. 

20. Overpayment made by disbursing officer to himself — Does an overpayment made 

to himself from public funds by a pay officer in the Navy constitute embezzlement 
where it appears that there may have been no criminal intent involved, but the pay 
officer was at least guilty of negligence or indifference as to the status ot his account. 
This question appears to be answered by what was said in the opinion of the At- 
torney General, dated May 9, 1910 (28 Op. A. G., 286), assuming that the negligence 
or indifference attributed to the officer was such as to indicate a willful disregard of 
the duties imposed upon him by law with respect to the safe-keeping of the moneys 
in his charge. This would appear to be in violation of the provisions of sections 87 
and 89 with respect to public officers converting public moneys to their own use 
except as authorized by law. C. M. O. 4, 1913, 52. 

21. Pay officer— Guilty of "Embezzlement, "even though funds actually taken by another, 

unless himself free from negligence or blame. CM. 0.39, 1913,9. See also Embezzle- 
ment, 25. 

22. Paymaster's clerk— Charged with. C. M. O. 26, 1902; 4, 1907; 26, 1912. 

23. Personal use — The action of a pay officer of the Navy in willfully drawing public funds 

for his personal use while absent from his station and duty clearly amounts to a viola- 
tion of the provisions of sections 87 and 89 of the Criminal Code against converting 
public funds to his own use except as authorized by law, although there be no inten- 
tion on his part to defraud the United States, and the funds withdrawn are subse- 
quently replaced. C. M. O. 4, 1913, 52. 

24. Prima facie— When shortage is proved the disbursing officer is prima facie guilty and 

must show what has become of the missing funds. G. C. M. Rec. 27899. 

For example of case where " burden of proof" devolves upon accused and where he 
must prove his case "bevond anv reasonable doubt," see opinion of Mr. Justice Storv 
in U. S. v. Hunt, 26 Fed. Cas. No. 15423, p. 435. See also G. C. M. Rec. 27899; C. M. 0\ 
39, 1913, 1; Embezzlement, 25. 

25. Proof of— The department returned a record of proceedings to the court with the follow- 

ing remarks: 

1. The accused in the above-named case was charged with I, "Embezzlement in 
violation of article 14 ofthe Articles for the Government of the Navy;" II, "Rendering 
a false and fraudulent return;" III, "Neglect of duty," and IV, "Violation of a 
lawful regulation issued by the Secretary ofthe Navy "'(three specifications). 

2. The court found the specifications of the first three charges not proved and 
acquitted the accused of those charges, and found proved two specifications of the 
fourth charge, which alleged that the accused unlawfully allowed certain enlisted 
men to sleep m the pay office, and found the accused guilty of said fourth charge. 

3. The judge advocate definitely proved an existing shortage in the accounts of the 
accused, amounting to SI, 370.55; thus it was shown that the accused should have had 
on hand June 30, 1913, 817,348.48, whereas in fact he was able to produce only the sum 
of S15,977.93, and was unable to account for the difference. There is no conflict what- 
ever as to this evidence, as the record (p. 22) contains the following entrv: 

"Counsel for the Accused. We admit that the board found cash on hand 
815,977.93; and we admit that the cash as per account current should have been 
§17,348.48." 

The shortage thus shown to exist in the accounts of the accused was in no maimer 
explained by the accused or the witnesses in his behalf. The question is therefore 
directly presented whether in this state of the case the court should have found the 
accused guilty of "Embezzlement" as charged. 



EMBEZZLEMENT. 207 

Article 14 of the Articles for the Government of the Navy (sec. 1624, R. S.) pro- 
vides for the punishment of any person in the naval service who "embezzles * * * 
any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, 
or other property of the United States furnished or intended for the military or naval 
service thereof." As held by the Attorney General (C. M. O. 4, 1913, 28): 

"The word 'embezzlement' is not here defined, and consequently it is necessary 
to look to the offense as defined in the penal statutes relating to United States officials 
who are charged with the duty of holding and disbursing funds belonging to the 
Government in order to determine of what elements the offense consists." 

It was further held by the Attorney General (C. M. O. 4, 1913, 45) that— 

"No resort can be had to the definitions of embezzlement given in the laws of the 
several States, as there is no uniformity in the State statutes upon the subject. In 
many States a fraudulent intent is an essential ingredient of the crime, while m others 
it is not." 

4. The penal statutes relating to embezzlement by United States officials, so far as 
applicable to the present case, are contained in sections 88 and 92 of the Federal Crim- 
inal Code, which sections read as follows: 

"Sec. 88. If the Treasurer of the United States or any assistant treasurer, or any 
public depositary, fails safely to keep all moneys deposited by any disbursing officer 
or disbursing agent, as well as all moneys deposited by any receiver, collector, or other 
person having money of the United States, he shall be deemed guilty of embezzle- 
ment of the moneys not so safely kept, and shall be fined in a sum equal to the amount 
of money so embezzled and imprisoned not more than 10 years. 

' ' Sec. 92. The provisions of the five preceding sections shall be construed to apply 
to all persons charged with the safe-keeping, transfer, or disbursement of the public 
money, whether such persons be indicted as receivers or depositaries of the same." 

5. In the present case there can be no question upon the evidence before the court 
that the accused failed safely to keep the sum of $1,370.55 of the moneys of the United 
States which were intrusted to him in his official capacity as pay officer of the Buffalo; 
and such failure on his part, as already stated, is entirely unexplained by the defense. 
What further evidence is required under these circumstances to support a finding 
that the accused was guilty of " Embezzlement " as charged? For more than half a 
century it has been held, under statutes substantially identical with those now in 
effect, that the mere failure of a disbursing officer of the United States to produce or 
account for the public moneys in his hands when required so to do constitutes em- 
bezzlement, unless such officer is able satisfactorily to explain such failure or to show 
that the funds which he could not produce were, without fault on his part, lost or 
stolen. Thus, under date of January 3, 1867, it was held by the Judge Advocate 
General of the Army that— 

"Section 5495, R. S., provides that the refusal of any person charged with the dis- 
bursement of public moneys promptly to transfer or disburse the funds in his hands, 
'upon the legal requirement of an authorized officer, shall be deemed, upon the trial 
of any indictment against such person for embezzlement, as prima facie evidence of 
such embezzlement.' Applying this rule to a military case, it is clear that in the 
event of such a refusal by a disbursing officer of the Army the burden of proof would be 
upon him to show that his proceeding was justified, and that it would not be for the prosecu- 
tion to show what had become of the funds. So, where an acting commissary of sub- 
sistence, on being relieved, failed to turn over the public moneys in his hands to his 
successor, or to his post commander when ordered to do so, or to produce such moneys, 
exhibit vouchers for the same, or otherwise account for their use, when so required by 
his department commander: Held, That he was properly charged with and convicted 
of embezzlement (the embezzlement now prohibited by this article). R. 22, 54S, 
January, 1867." (Dig. J. A. G., Army, 1912, p. 138 A 4.) 

In the case cited, the Judge Advocate General ot the Arrav said: 
"The burden of proof is by this act thrown upon the defendant to show that his 
retention and nonproductioh of the public money is not an embezzlement. If he 
fails to do this the court is warranted in finding, and indeed must find, him guilty of 
the charge. 

t "The accused in the present case makes no effort to show his innocence, but rests 
simply on the omission on the part of the prosecution to show what has become ot the 
funds which he contesses freely having received as alleged. He is therefore properly 
and legally convicted." 

50756°— 17 14 



208 EMBEZZLEMENT. 

6. The foregoing was in accordance with an earlier opinion ol the Judge Advocate 
General of the Army, rendered November 22, 1862, in which it was held - 

'•' If upon formal demand made this officer should fail or reiuse to pay over or account 
for the public moneys in his hands, a prima facie case of embezzlement would be 
made out against him; but it would be only a prima facie case were he to show in 
his defense that the money had been lost or fraudulently or feloniously abstracted from 
him, the animus of the embezzlement would be wanting and he would be acquitted." 

7. The opinion last quoted is still in lorce, as shown by the following paragraph in 
the Digest of Opinions of the Judge Advocates General of the Army, 1912 (p. 541, A 
12 b): 

"It is a defense to a charge under article 62 of the embezzlement defined in section 
5490, P. S., as consisting in a failure to safely keep public moneys by an officer charged 
with the safe-keeping of the same, that the funds alleged to, have been embezzled were, 
without fault on the part of the accused, lost in transportation or fraudulently or felo- 
niously abstracted. R. 1, 435, Nov., 1862." 

8. Decisions of the civil courts are in accord with the opinions of the Judge Advo- 
cate General of the Army, as shown by the following cases: 

(c) In State v. Leonard, Supreme Court of Tennessee, decided 1869 (46 Tenn. (6 
Colds.), 308), it was held: 

"The objection is that the failure and refusing to pay over to his successor is not a 
' conversion or evidence of a conversion by the defendant to his own use in the sense 
of the code, section 470 p >, which defines the offense. 

"The objection is without merit. The code, section 4706, enacts that if any person 
charged with the safe-keeping, collection, and disbursement of money or property 
belonging to the State or any county use any part of said money or property, by loan, 
investment, or otherwise, without authority of law, or convert any part thereof to 
his own use in any way whatever, he is guilty of embezzlement. 

' ' Failing and refusing to pay over the money to his successor in office is, unexplained, 
evidence of a conversion of the money to his own use, and if proved will establish 
the allegation of the indictment that he did embezzle and convert the money to his own 
use. Failing and relusing to deliver a chattel, upon demand of the person entitled 
to possession, is evidence of conversion, in the civil action of trover. 

" Of course, proof may be made by the defendant, of facts, relieving the failure and refusal 
to pay of its felonious character. * * * 

"The duty of the court is to enforce the criminal law, and not to search for unnatural 
circumstances for pretexts or means to screen offenders from the punishment due to 
their crimes." 

(6) This case was cited and followed by the same court in 1871 in the case of State v. 
Cameron (50 Tenn. (3 Heisk.), 84). 

(c) In Commonwealth v. Levi, Superior Court of Pennsylvania, decided in 1910 (44 
Pa. Super. Ct., 253), it was held, quoting syllabus: 

" On the trial of an indictment of an executor for embezzlement, the inventory and 
appraisement oi the decedent's estate filed by the defendant in the office of the register 
of wills, is admissible in evidence; as is also proceedings in the orphans' court and 
supreme court as proof of what property of the estate the defendant had in his 
hands and which he should legally be required to pay to the distributees. 

"Such evidence does not prevent the defendant from showing, if he can, that he 
had lost the money in any manner which did not involve malfeasance, on his part, or that 
he had through an honest mistake paid the money to parties who were not legally 
entitled to receive it." 

In the course ol its opinion in this case the court said: 

"Conversion, by the trustee, oi a trust fund to any other use than that of the cestui 
que trust is prima facie fraudulent, and the failure of the trustee to pay on settlement 
o) his account is evidence of conversion. Commonwealth v. Kaufman, 9 Pa. Superior 
Ct., 310; Commonwealth v. Beale, 19 Pa. Superior Ct., 434; Commonwealth v. King, 
35 Pa. Superior Ct., 454." 

9. In other words, in the case last cited, the court holds that when evidence is 
admitted establishing the amount of funds which an executor had in his hands and 
is required to pay to the beneficiaries of a will, his failure to pay such amount on settle- 
ment of his account is evidence of conversion; and that the burden devolves upon the 
executor to show, if he can, that he had lost the money in some manner which did not 
involve fault on his part, or otherwise to explain his failure to pay over the amount 
due. (In this connection, see opinion of Mr. Justice Story, in U. S. v. Hunt, 26 Fed. 
Cas., p. 435.] 



EMBEZZLEMENT. 209 

10. The Attorney General's opinion of May 9, 1910, in the case above cited (C. M. 
O. 4, 1913, 2 Q ) is entirely in consonance with the earlier decisions to which reference 
has been made. Thus, in his opinion, the Attorney General said (C. M. O. No. 4, 
1913, 31): 

"Without here undertaking to pass upon the necessity of a fraudulent or criminal 
intent or knowledge upon the part of the accused, it is sufficient to say that if such 
intent or knowledge were necessary, their absence, under the positive provisions of 
this statute, would be a matter of defense." 

Here it will be seen the Attorney General holds it is for the accused to prove as a 
"matter of defense" that the money was lost without fault on his part. Continuing, 
the Attorney General in the same opinion points out what would constitute such a 
"matter of defense" as to entitle the accused to acquittal after a deficit has been 
proved by the Government (C. M. O. 4, 1913, 35): 

"It was clearly the intention of Congress, in enacting the provisions heretofore 
quoted, requiring the safe-keeping of money by officials intrusted therewith, that the 
greatest diligence and care should be exercised by them, and that every precaution 
should be taken to safely keep and account for the same. If money should be lost by 
robbery, or fire, or by any accidental means, after every precaution had been exercised 
by the official having it in his possession, it would indeed be a harsh rule that would not 
only hold him and his securities liable for the same, but would confine him in the 
penitentiary for its loss." 

11. Thus the Attorney General's opinion, in substance, holds that if Government 
funds are lost without fault on the part of the officer intrusted therewith such officer 
is not guilty of embezzlement under the statutes; but that it is for the accused to 
show, as "a matter of defense," that the money was so lost without fault on his part, 
as, for example, "by robbery, or fire, or by any accidental means." Some of the 
other decisions above cited, it will be noted, hold that mere evidence of an existing 
shortage, unless satisfactorily explained by the defendant, justifies a finding that he is 
guilty of actual conversion of the funds so unaccounted for. In the present case it is 
not necessary for the court to find that the accused actually converted the funds to 
his own use, as the Federal statute is broad and makes mere failure safely to keep 
public funds embezzlement, regardless of what has become of such funds. Thus it is 
settled by C. M. O. 4, 1913, that, even though the evidence should apparently estab- 
lish that the missing funds had actually been stolen by another, the pay officer would 
nevertheless be guilty of embezzlement under the statute if ne had been negligent 
in safeguarding the money in his charge; and the same thing applies where there is no 
evidence whatever as to what has become of the missing funds even though there 
should be no evidence of negligence on the part of the accused. In other words, the 
accused in order to rebut the prosecution's evidence that the money is missing, which 
is prima facie evidence of embezzlement, must show not only that the funds were 
stolen or misappropriated by another, but, furthermore, must affirmatively show 
that such theft or misappropriation by another was not due to fault on the part of 
himself, the accused. . 

12. In the present case the accused has failed absolutely to show what became of 
the $1,370.55 of Government funds for which he was responsible, and accordingly 
there is no evidence upon which the court can base a finding, first, that the money 
was stolen by a person other than the accused or accidentally lost; and, secondlv, 
that such theft or accidental loss of the funds was without negligence on the part of 
the accused. And the court, according to the above authorities, must find both of 
these facts before it can properly render a verdict of not guiltv. The accused has 
had his "day in court" and has failed to make any defense which is legally sufficient 
to the charge of embezzlement. It is not enough for him to say to the Government , 
as it were, "It is true that I have failed safely to keep SI ,370.55 of Government funds 
which were intrusted to me, but it is not necessary for me to explain what has become 
of this money; you must prove that I misappropriated the money or was guilty of 
such negligence or indifference in its care as to indicate a willful disregard of the dill ies 
imposed upon me bylaw with respect to the safe-keeping of the moneys in my cha rge . ' ' 
Yet this is precisely the attitude of the accused in the "present ca«e,'as shown by the 
following extracts from the argument of his counsel: 

"He is charged between the dates of April 1 and June 30. There is no evidence 
before this court to show that this safe was found open between these dates, or that 
he didn't do everything in his power to protect his combination between those dates." 
(Rec, p. 98.) 



210 EMBEZZLEMENT. 

''There is nothing in the testimon y that shows during the period from April 1 to July 
1 that there was any failure, any neglect, or any other circumstance that would indi- 
cate that the accused has not safely kept this money as well as he could with the 
means at his disposal." (Rec, p. 124.) 

It may be that the Government has not shown in the present case what became of 
the missing funds or that the accused left the safe open during the dates in question or 
was otherwise guilty of negligence during such period. But, as already shown, it 
was not necessary for the Government to introduce evidence establishing such facts. 
The judge advocate proved that the accused was intrusted with certain funds by the 
Government; that Si, 370.55 of such funds were missing and unaccounted for by the 
accused. This is all that the Government could reasonably be expected to prove in 
the average case of embezzlement and is all that the law requires. It is the duty of 
the accused to account for every cent of the Government money in his charge or to 
explain satisfactorily to the court what has become of such funds and definitely estab- 
lish that their loss was not due to fault on his part. The logic underlying this principle 
is apparent. Thus, if the law were in accordance with the attitude of the accused 
in this case, it would be possible for any officer charged with the safe-keeping of Gov- 
ernment funds to enter his office, lock the door, open the safe, abstract the contents, 
lock the safe, and proceed to conceal the money thus feloniously taken without being 
found guilty of embezzlement, as in the case so supposed it would be impossible for 
the Government to prove what had become of the funds or that the accused had been 
guilty of negligence in their safe-keeping. Accordingly, the findings of the court, if 
allowed to stand, would become a most pernicious precedent, placing a premium upon 
the ingenuity of disbursing officers who might succeed in systematically misappropri- 
ating Government funds without leaving even a modicum of telltale evidence in their 
wake. As was stated by the Judge Advocate General with reference to the laws defin- 
ing embezzlement by Federal officials (C. M. O. No. 4, 1913, 6): 

"Upon consideration the necessity of such statutes will be readily understood as a 
safeguard to public funds. This is'strongly demonstrated by a case in the records 
of this department, where the contention of the accused was that he had left his safe 
unlocked and that Government funds contained therein were stolen by some party 
unknown. Nevertheless, under the broad provisions of section 88 of the Criminal 
Code the pay officer was convicted of embezzlement for failing 'safely to keep ' said 
funds, although evidence was not available to show misappropriation by the accused 
himself. Subseouently, after the trial had been completed, additional evidence 
was secured, resulting in a confession by the accused that the funds had been used by 
himself for private purposes and the defense above mentioned concocted to evade 
criminal responsibility. Had it not been for the statutory provisions covering his 
case, the accused might have escaped all punishment or received a light sentence for 
neglect of duty." 

***** 

14. The department of course does not want to suggest that the court in this case 
may have £>een influenced in its finding by sympathy for the accused, based on the 
consideration that he would be sufficiently punished for his failure to safeguard Gov- 
ei-nment funds by being required to make good the amount of his shortage: as the 
members of the court are, by their oath, bound to try the case without "partiality " 
and "according to the evidence which shall come before the court." It may, however, 
be remarked that the accused, according to his own testimony, has not made good 
the amount of his shortage (Rec, p. 90): the reason for which, according to the record, 
is that he had been "advised" not to do so (Rec, p. 11). Accordingly, the prssent 
case differs from those of the two cases published in C. M. O. 4, 1913, above referred to, 
in that the Government has actually sustained a loss, whereas in those cases the 
amount of the funds embezzled was in each instance replaced. Should the accused 
in this case be finally acnuitted in this case of " embezzlement " as charged, this would 
also necessarily acquit him of ne^lirence in connection with the loss of the funds in 
question, because, as already explained, such negligence by a public officer is made 
embezzlement by law. Therefore, if so acquitted, the accused would have a strong 
basis for applying to the Court of Claims to be relieved from financial responsibilitv 
for this loss under sections 145 and 147 of the United States Judicial Code, approved 
March 3, 1911 (36 Stat., 1136\ which sections provide as follows: 

"Sec. 145. The Court of Claims shall have jurisdiction to hear and determine the 
following matters: * * * The claim ofany paymaster, quartermaster, commissary 
of subsistence, or other disbursing officer of the United States, or of his administrators 
or executors, for relief from responsibility on account of loss by capture or otherwise, 



EMBEZZLEMENT. 211 

while in the line of his duty, of Government funds, vouchers, records, or papers in 
his charge, and for which such officer was and is held responsible. 

" Sec. 147. Whenever the Court of Claims ascertains the facts of any loss by any 
paymaster, quartermaster, commissary of subsistence, or other disbursing officer, 
in the cases hereinbefore provided, to have been without fault or negligence on the 
part of such officer, it shall make a decree setting forth the amount thereof, and upon 
such decree the proper accounting officers of the Treasury shall allow to such officer 
the amount so decreed as a credit in the settlement of his accounts." 

(a) From this it will be seen that if the law were otherwise than has been herein- 
before stated, it would be possible in the supposititious case referred to in paragraph 12 
(p. 10) for a pay officer actually to embezzle Government funds in his possession and 
to be acquitted because the Government was unable to prove either that he had 
taken the money himself, or been guilty of negligence in safeguarding it; and such 
officer who had so actually embezzled Government funds could go to the Court of 
Claims and apply for relief from financial responsibility for the amount embezzled on 
the ground that his acquittal by the court-martial of embezzlement necessarily involved 
an acquittal of such negligence as the law makes embezzlement. While the question 
of the financial responsibility of the accused does not enter into the case now pend- 
ing before the court of which you are president, except in so far as the fact that he has 
or has not made good the amount of his shortage may affect the sentence to be adjudged 
if he is convicted, at the same time the department is required to consider the effect 
of the court's finding in this case should it be allowed to stand, not only with refer- 
ence to the criminal and financial responsibility of the accused but also its effect as a 
precedent, giving assurance to pay officers who may be so inclined that they are at 
liberty to make such use of Government funds as they please, and so long as the 
department is unable to prove that they actually converted such funds or were guilty 
of gross negligence in connection therewith, they will be acquitted by court-martial 
of embezzlement, and may then carry the record of the court-martial into the Court 
of Claims in support of an application to be relieved from financial responsibility for 
the amount embezzled or not safely kept? 

15. Counsel for the accused in concluding his argument (Kec. ; p. 105) stated: 

"Is there any doubt at all whether some person, then, as inexperienced as Mr. 
* * * could have worked that combination and gotten into the safe and, in a hurry 
grabbed different denominations of money and escaped without being noticed, espe- 
cially if the ship were at sea, when most of the officers are on watch and not around 
the decks in the vicinity of the pay department." 

In this connection it will be remembered Ensign * * * [referred to by counsel 
above] testified that although he made repeated attempts, he did not succeed in open- 
ing the safe-in his experiments; and another witness testified that "the combination 
had to be worked exactly or the safe would not open"; that he did not know what an 
"expert" could do, but that "the average person would have a great deal of trouble 
in getting into the safe without knowing the combination." Is it not much more 
reasonable to conclude, instead of accepting the hypothesis suggested by counsel for 
the accused, that the accused may have left the safe unlocked, and that some per- 
son had thus been enabled to get into the safe and in a hurry grab different denomina- 
tions of money, lock the safe, and escape without being noticed? In such a case, how 
could it be expected that the Government would be able to prove that the safe had been 
left unlocked? Had the accused introduced evidence showing that there were "ex- 
perts" on board ship able to open the safe without knowing the combination, the 
situation might be different. Or had he shown that he discovered evidences that the 
safe or his money had been tampered with and immediately reported the matter to his 
commanding officer, a reasonable doubt might possibly have existed in the minds of 
the court concerning his guilt. .But the court must know that ordinarily safe expert s 
are not to be found on board vessels of the Navy and that it would be going ent irely 
too far without evidence of any kind in support thereof to conclude that the safe in 
question had been rifled by an expert. Knowing that the accused had. on at least 
one occasion while pay officer of the Buffalo, left his safe unlocked: that his conduct- 
in general was such as to convince his command ins: officer of the advisability of invesl i- 
gating his official accounts; that confessedly he did not inform li is commanding officer 
immediately upon discovering the shortage, nor until the afternoon of the next day; 
and that he does not attempt to show that at any time he discovered anything sus- 
picious in the condition of his safes or the funds tent therein, certainly the only rea- 
sonable conclusion is, granting that the accused did not himself misappropriate the 



212 EMBEZZLEMENT. 

missing funds, that he was guilty of negligence which enabled some other person to 
take the funds in question. But the court is not required to indulge in hypotheses; 
the main fact is that the funds are missing and that the accused does not explain in 
any manner whatever what has become of them, but seeks to obtain an acquittal on 
the ground that the Government has not introduced evidence which it was his duty 
and not the Government's to present to the court. And the authorities above quoted 
all wisely concur in the conclusion that under such circumstances a public officer is 
not entitled to acquittal. 

The court in revision revoked its former finding and found the accused "guilty" 
of the first charge. C. M-. O. 39, 1913. See also C. M. O. 4, 1913; 25, 1916; File 26256- 
193:8, J. A. G., Mar. 2, 1915. 

A pay officer when a shortage is proved is guilty of embezzlement, even though the 
funds were taken by another, unless he is free from neglect, and for an acquittal evi- 
dence showing absence of such neglect is necessary, and the accused can not require 
the Government to prove misappropriation or negligence nor can he require the court 
to indulge in hypothesis to supply evidence- which it is the duty of the accused to 
introduce. C. M. O. 25, 1916. 

26. Replacing funds— The fact that the accused intended to replace the money with- 

drawn, and did subsequently replace it, can not remove his guilt of a crime which 
had been completed some days before the money was replaced. The remarks of 
the court in United States v. Gilbert (25 Fed. Cas. No. 15, 205) apply with equal 
force to the present case. That was an indictment under a statute relating to post- 
masters, but of similar import to section 87 of the Criminal Code. The evidence 
showed that the accused at the time of using money -order funds for private purposes 
intended to replace them, and that he did in fact subsequently deposit an amount 
equal to that which was charged as having been embezzled. Nevertheless he was 
found guilty of embezzlement, the court saying: 

"It is obvious that the enforcement of this section in all its strictness is essential to 
this class of Government funds, and to the discouragement of postmasters from even 
temporarily using them for private purposes. The intention of replacing them, 
however honestly entertained, can not be accepted as an excuse or apology for vio- 
lating the law, as one may be disappointed by unexpected circumstances, and thus 
not only endanger the moneys of the Government, but involve himself in difficulty 
and criminal prosecution. The law intends that funds of this character should be 
kept absolutely separate and sacred, as the best method not only of keeping the 
funds themselves secure, but of guarding the officers themselves from temptation 
and delinquency. The diversion of money-order funds in any way whatever pro- 
hibited by this section, or for any time however short, constitutes embezzlement 
under this act, and is punishable as such." C. M. O. 4, 1913, 7-8. See also File 
5208:1, J. A. G., July 2, 1906. 

27. Shortage — When shortage is proved, pay officer is prima facie guilty, and must show, 

as a matter of defense, absence of negligence or culpability on his part. Not neces- 
sary for the Government to prove what has become of the missing funds. C. M. O. 
39, 1913, 1. 

28. State laws— Not applicable. C. M. O. 4, 1913, 28; 39, 1913, 5. See also Embezzle- 

ment, 25 (p. 207, line 11). 

29. Statutory offense— Embezzlement- is in all cases a statutory offense. C. M. O. 4, 

1913, 60. See also Embezzlement, 7. 

30. Technical — Difference between technical embezzlement and embezzlement with in- 

tent to defraud may be taken into consideration in adjudging sentence. C. M. 0. 30, 
1910, 7. See also Embezzlement, 14. But see Adequate Sentences, 3; Clem- 
ency, 13. 

31. Theft and embezzlement— Distinguished. G. O. 143, Oct. 28, 1869. 

EMBEZZLEMENT OF PRIVATE MONEY. 

1. Paymaster's clerk— Charged with. C. M. O. 28, 1887. See also G. C. M. Rec. 32006. 

EMBEZZLEMENT OF PUBLIC MONEY. 

1. Paymaster's clerk— Charged with. C. M. O. 28, 1887. 

EMBEZZLEMENT IN VIOLATION OF ARTICLE FOURTEEN OF THE ARTI- 
CLES FOR THE GOVERNMENT OF THE NAVY. 

1. Officers— Charged with. C. M. O. 27, 1887; 82, 1892; 7, 1894; 88, 1895; 74, 1897; 203, 1902; 

92,1903; 53,1935; 11,1908; 22,1910; 27,1911; 4,1913; 7,1913; 39,1913; 25,1916; G-C.M. 
Rec. 16956; 13G70; 6359. 

2. Paymaster's clerks— Charged with. C. M. O. 102, 1894; 173, 1902; 38, 1913; G. C. M. 

Rec. 23461. See also Pay Clerks and Chief Pay Clerks, 6. 



ENLISTMENTS. 213 

EMERGENCY. 

1. Boilers. See C. M. 0. 37, 1915. 

2. Commanding officer— Orders in case of. See Collision, 19. 

3. Officer of the deck— Action in case of. C. M. O. 44, 1883. See also Officer-of-the- 

Deck, 7, 10. • 

4. Repairs to vessels. File 1052-97. See also File 5177-96. 

5. Senior officer actually present on spot— Has duty of taking necessary action upon 

his own initiative to prevent injury to lives and property under his charge; and where 
the emergency is immediate and urgent he is not justified in delaying the necessary 
action because of an order issued by his superior officer before the emergency occurred 
and under a materially different state of facts. C. M. O. 37, 1915, 1, 3-7. 

EMINENT DOMAIN. See File 6769-21, J. A. G., July 19, 1911, p. 9. 

EMOLUMENT. See also Pay; Salaries. 
1. Definition— "Emolument is the profit arising from office or employment; that which 
is received as compensation for services, or which is annexed to the possession of 
office, as salary, fees, and perquisites." (3 W. & P. 2367.) File 4924-435, J. A. G., 
June 20, 1916. 

EMPLOYED. 

1. Definition and use of word. File 26516-38, J. A. G., Dec. 3, 1910, 2. 

EMPLOYEES. See Civil Employees. 

EMPLOYMENT. 

Retired officer— Employment of. See Retired Officers, 1,9, 18,26,28,31,34-40,42,44,50, 
52,54-58,72. 

ENGINEER OFFICER. 

1. General court-martial— Tried by. C. M. O. 9, 1915. 

ENLISTED MEN. 

1. Marine corps — Appointment as officers in. See Appointments, 22. 

2. Dental work. See Dental Services. 

3. Treatment of— Enlisted men in the Navy, the same as Members of Congress, mem- 

bers of the bar, and others in civil life, are not to be treated as criminals until their 
guilt has been established by due process of law. File 26524-259: 3, Sec. Navy, May 
2, 1916. 

4. Office— Does an enlisted man hold office? See " Office," 10, 12; Decorations, 2. 

5. Debt. See Debts. 

6. Retired— Not part of Navy. See Retired Enlisted Men, 9. 
ENLISTMENTS. 

1. Aliens. See Aliens, 3; Citizenship, 12. 

2. Antedating of— Where a sergeant of marines made application for reenlistment on 

September 28, 1905, the day following his discharge, and was not enlisted until the 
following day, held, that in view of the fact that he made application the day fol- 
lowing his discharge, that his physical disqualification was properly waived, that 
he was held to service during the time his physical condition was under consider- 
ation, actually performing his customary duties, and submitted himself to naval 
authority in all respects until the completion of his reenlistment on October 4, 1905, 
as though his reenlistment had been perfected on the date of his application, he may 
be given credit for service from September 2S, 1905, to October 3, 1905, both dates 
being inclusive. File 7657-111, J. A. G., September, 1911. 

3. Citizenship— Necessity of citizenship for enlistment. See Citizenship, 12, 13. 

4. Convicts, of. See Convicts, 2. 

5. Criminals— To escape punishment by civil courts. File 7657-178: 1, Sec. Navy, Apr. 

19, 1913; Congressional Record, Feb. 24, 1913, 3939-3940. See also File 7657-396, See. 
Navy, Sept. 15, 1916; Convicts, 2, 3. 

6. Deserter— Unconvicted — Enlistment of unconvicted deserters not advised. Sec De- 

serters, 13. 

7. "Escaped convicts." See Convicts, 3. 

8. Expiration of— The department has authority to retain a general court-martial pris- 

oner to serve out his sentence after his enlistment has expired and he has been given 
a discharge from the service. File 26504-102, J. A. G., Mar. 1, 1910. 



214 ENLISTMENTS. 

A general court-martial prisoner may be tried by summary court-martial or 
deck court prior to the expiration of his period of enlistment and may afterwards 
be held to serve out the sentence imposed by such courts irrespective of whether or 
not his sentence by general court-martial or his enlistment expires in the meantime. 
File 26504-100, Sec. Naw, Dec. 21, 1910. See also Walker's Case, American Jurist' 
1830; 7 East, 376; Com. v Fox, 7 Penna., 337; Breaking Arrest, 3; Jurisdiction, 
52,97. 
9. Same— Unauthorized absence after. See Enlistments, 8; 16 J. A. G. 109. See also 
In re Grimley, 137 U. S., 147. 

10. Same — Jurisdiction attaches for offenses committed prior to actual discharge. See 

Jurisdiction, 97. 

11. Same— Retention in service. See File 7657-167, J. A. G., Jan. 17, 1913; 26251-6297: 2; 

Sec. Navy, July 10, 1913. 

A sergeant of marines was "retained in service beyond term of enlistment to make 
good 118 days lost by absence without leave." C. M. O. 28, 1910, 7. 

An enlisted man shall be required to "make good" any time lost during current 
enlistment in excess of one day "on account of sickness or disease resulting from his 
own intemperate use of drugs or alcoholic liquors, or other misconduct" only where 
such sickness or disease was contracted on or subsequent to August 29, 1916. (See 
act of Aug. 29, 1916, 39 Stat. 580.) In other words, where the sickness or disease 
which results in loss of time was contracted prior to August 29, 1916, enlisted men will 
not be required to "make good" such time. File 7657-394:1, Sec. Navy, Sept. 20, 1916; 
C. M. O. 33, 1916, 5-6; See also Marine Corps, 30. 

12. Extension of— The act of August 22, 1912 (37 Stat, 331), authorizes extension of enlist- 

ment only in the cases of men enlisted for a term of four years. Therefore, held, that 
a man enlisted for minority can not extend his enlistment under the provisions of 
said act. File 7657-182, J. A. G., Apr. 14, 1913; C. M. O. 29, 1915, 6. 

13. Same — Credit for double time — A marine serving in a regular four-year term of enlist- 

ment entered that enlistment prior to August 24, 1912, and is receiving credit for 
double time toward retirement for foreign service; should he extend his enlistment 
in accordance with the act of August 22, 1912 (37 Stat. 575), for a period of one, two, 
three, or four years, and continue on foreign service, he would continue to be entitled 
to credit for double time while serving in the extension of his present enlistment. 
File 26507-233, J. A. G., Sept. 29, 1915; Sec. Naw, Sept. 30, 1915; C. M. O. 31, 1915, 6. 

14. Same— Good-conduct medals. See Good-Conduct Medals. 

15. Same— 1-4893. See Naval Instructions, 1913, 1-4893. 

16. Minors. See Apprentices, 2; Minors, 9-14. 

17. Minority— Error in — Where a minor signed a contract of enlistment, reading " I oblige 

and subject myself to serve during minority, until January 1, 1915," the legal effect 
of the contract was to bind him to serve until he arrived at the age of 21 years, which 
the evidence in this case shows would be January 1, 1916. The date on which he 
would attain his majority, given in the contract of enlistment and consent of parent 
as January 1, 1915, must be rejected as an error in computation. Since the man 
stated that he was informed by the recruiting officer that his enlistment would expire 
January 1, 1915, which statement is confirmed by the date given in the shipping 
articles', it would be proper to give the man his discharge at once, but if he desires 
the benefits of a discharge by reason of expiration of enlistment he would have to 
serve until Januarv 1, 1916. File 7657-273, J. A. G., Jan. 16, 1915: C. M. O. 6, 1915. 11. 

18. Prosecution of applicants fraudulently obtaining transportation— The Secre- 

tary of the Navy will not request the Attorney General to instruct United States 
attorneys to institute criminal proceedings against applicants for enlistment in the 
Marine Corps alleged to have fraudulently obtained Government transportation. 
File 7657-180. 

19. Termination of— An enlisted man can not terminate his enlistment by an act of his 

own. An enlistment is terminated by death or discharge only. Any offense com- 
mitted by the enlisted man before death or actual discharge is within the jurisdic- 
tion of a naval court-martial and he may be tried therefor after the date of expiration 
of enlistment. File 26251-5447, J. A. G., Dec. 8, 1911. See also Breaking Arrest, 3. 

20. Trial by summary court-martial— Absence from station and duty without leave 

extending over expiration of enlistment. File 26287-548, J. A. G., July 2, 1910. 

21. Violating agreement— To reenlist on same ship after discharge— Tried for "conduct 

to the prejudice of good order and discipline," See Discharge Obtained by Fraud. 

22. War with Spain. Sec War with Spain, 2. 

ENLISTMENT PAPERS. See Service Records. 



EPILEPSY. 215 

ENLISTMENT RECORDS. See Service Records. 

ENTICING A PRISONER TO ESCAPE. 

1. Enlisted man— Charged with. C. M. O. 48, 18S9. 

"ENTIRELY ACQUIT." See Acquittal, 13. 

EPILEPSY. 

1. Confinement — Of an epileptic is not injurious to his health — With reference to the 

possible effect of confinement at hard labor on an epileptic, it will be seen from the fol- 
lowing that such would be of benefit rather than detrimental to the health of an accused 
supposedly suffering from epilepsy: An expert witness for the accused at a recent trial 
testified, " I do not know how irksome life would be in a jail. I believe jails vary. I 
think the confinement and the monotony of it would tend to make him worse. The 
regular habit of life and the simple food that he would get there would be of the 
greatest assistance in curing his epilepsy." This expert also testified that if the ac- 
cused epileptic were his patient he would place him "somewhere where his habits 
could be regulated. I think that is of first importance in curing epileptics. The 
medical treatment of it is secondary to that. There is a variety of places where such 
a result could be obtained. I suppose any hospital or sanitarium could furnish the 
proper environment and the proper restraint on his food and habits." In this con- 
nection the Surgeon General of the Navy reported that "there is no reason to be- 
lieve that the punishment imposed on him by general court-martial will be delete- 
rious to his health, but, with the regular life, careful diet, good hygiene, and medical 
supervision which he will have at the" prison, "his general state of health should be 
improved." (File 26251-9280: 40, Sec. Navy. Mar. 27, 1915.) A report made by the 
warden of the prison in which this accused was confined, about four months after 
his confinement began, reads in part: "As to his physical and mental condition will 
say he is getting along fine. * * * Works every day, no sign of epileptic as yet." 
From the foregoing it will readily be seen that the confinement of an epileptic 
does not appear to be detrimental either to his mental or physical well being. File 
26250-9280: 41, Sec. Navy, Apr. 17, 1915; C. M. O. 51, 1914, 4-5. 

2. Defense of — Where an accused knows the difference between right and wrong, was 

conscious of having done wrong, and was competent to conduct his defense when 
tried by general court-martial, it is not a good defense for him to prove that he was 
afflicted with epilepsy, which it was claimed had so far affected his moral sense and 
weakened his will as to render him not fully responsible for the offenses committed 
by him. G. C. M. Rec. No. 29422; File 26251-9280; C. M. O. 51, 1914, 4. 

3. Same — An accused was charged with "Fraudulent enlistment," pleaded "guilty," 

and no evidence was introduced by the prosecution. On the part of the defense a 
naval medical officer was introduced, presumably to show extenuating circumstances, 
and entirely upon his evidence the court acquitted the accused on the ground that 
at the time he committed the offense he was insane. The department returned 
the case for revision, with proper remarks, but the court respectfully adhered to its 
findings and acquittal, stating: "In view of the testimony of the medical officer, as 
noted on page 4 of the record, to the effect that the accused was subject to epileptic 
fits, as shown by his (the doctor's) medical journal, and further, that the testimony 
of the doctor who examined him for reenlistment, as noted on page 7 of the record, 
shows that he was unable to determine any mental deficiency at the time of enlist- 
ment, but that it was possible that an epileptic might pass, no matter how rigid 
the examination, and appear mentally sound yet have an attack later, the court 
decides respectfully to adhere to its former finding and acquittal." 

The department in its action stated in part: The only evidence given by the 
doctor who testified as to the irresponsibility of the accused which touches in any 
way upon epileptic fits is to the effect that, in looking over the man's record, he 
found that he had been entered on his medical journal with epilepsy, having had 
one convulsion on board. 

That on this single occasion just mentioned, and the two instances when the accused 
was markedly under the inlluence of alcohol, morphine, or cocaine, were the only 
times on which the accused came under the doctor's observation. 

The court gives as a further reason for adhering to its former finding, the testimony 
of the examining surgeon, who testified that he was unable to determine any mental 
deficiency at the time of enlistment, but that it was possible that an epileptic might 
pass, no "matter how rigid the examination. 

In the opinion of the department the idea conveyed in the first part of this reference 
is to a certain extent misleading. 



216 EPILEPSY. 

What the doctor did state, according to the record, was that there was nothing in 
his, the accused's, appearance at the time (referring to the time of his examination 
for enlistment, on Sept. 30, 1909) to indicate to him that he was other than sound 
physically and mentally. 

In answer to the question, "Was your examination of the accused on September 
30, 1909, sufficiently minute to determine any mental deficiencies that might have 
existed in the accused," he answered, "Strictly speaking, no;" and further states in 
the same answer that it is possible that an epileptic may pass a physical examination, 
no matter how rigid, and appear mentally sound yet have an attack later. 

The court failed to further observe that the doctor later stated that he thought an 
epileptic would be responsible for statements made, except during a paroxysm. 

It can be assumed that, at the time of the doctor's examination, or when the accused 
was enlisted, he was not in an epileptic paroxysm, and therefore so far as epilepsy and 
the resultant mental condition is concerned the accused was responsible at the time 
of this fraudulent enlistment. 

The department in its letter returning the case to the court very carefully set forth 
the only condition upon which an accused might be acquitted by the court because of 
insanity, and that it must be conclusively shown that he was insane at the time of his 
committing the offense charged. 

Notwithstanding these instructions the court apparently gave no heed whatever 
to the direct injunction of the department, as is shown by their finding on revision, in 
which the court goes on record that it adhered to its former finding in view of the fact 
that the accused was subject to epileptic fits, as shown by the doctor's medical journal. 
The one fit referred to, and not fits, occurred some time prior to May, 1909, and the 
accused enlisted in October of the same year. 

It is thus shown from the finding of the court that the department's letter was 
entirely ignored, and by the court obstinately adhering to their opinion rendered a 
finding wholly inconsistent with the evidence, thereby occasioning a miscarriage of 
justice. The court thus signally failed in its duty, and its conduct is subject for 
censure. 

The medical record shows that the accused was admitted to the sick list on the 
Nebraska on November 4, 1908, and discharged therefrom the next day, epilepsy being 
assigned as the disease. 

The accused's enlistment record shows that he was 515 days serving on the Nebraska, 
and was but for one day during that period on the sick list, and evidently this occasion 
is the one of November 4, above referred to; he having been discharged from the 
Nebraska on May 10, 1909. Considering these facts, together with the doctor's testi- 
mony, it shows that he was over six months on board the Nebraska after his one 
attack, and had no other attack throughout this latter period; and the records fail to 
show any recommendation made by the doctor as the result of this one attack, even 
though the man continued on board six months thereafter. 

The department is aware that these facts just referred, to were not brought out in 
evidence, but they were all available at the time of the trial, and could and should 
have been brought forward before the court took the action it did. 

The court, by adhering to its original finding, causes a miscarriage of justice, permits 
the accused to escape merited punishment, and by neglecting their duty becomes 
responsible for the injurious effect thus caused to the discipline of the naval service. 

The proceedings, finding, and sentence in this case were disapproved by the depart- 
ment, and it was ordered that the accused be released from arrest, and, as an entirely 
separate and independent proceeding, discharged from the service as undesirable. 
C. M. O. 42, 1909, 13-15. 

4. Ensign— Retired on furlough pay. File 26253-445. 

5. Memorandum on. File 26251-9280:43. 

EPITHETS. 

1. Officer, by— The use of a vile epithet by an officer indicates an inexcusably unclean 
habit of thought and speech. C. M. O. 18, 1910, 2. See also Officers, 122. 

EPSOM SALTS. 

1. Bichloride of mercury— Administered by mistake instead of. C. M. O. 6, 1915, 12. See 
also Line of Duty and Misconduct Construed, 75. 

"EQUIPAGE." 

1. Definition — The word "equipage" refers to the "outfit of a ship" and supplies of all 
kinds for the shiv, and not to provisions and other consumable articles for those who 
navigate or are transported in her. File 24482-31, J. A. G., Feb. 17, 1911; 24482-34, 
J. A. G., May 1, 1911." 



ESTOPPEL. 217 

ERASURES. 

1. Findings— Must be free from. C. M. O. 55, 1910, 8-9. 

2. Sentence— Must be free from. G. C. M. Rec. 23760. 

3. Same — Although an erasure in the body of the record of proceedings of a summary 

court-martial is not deemed an error of sufficient gravity to warrant the disapproval 
of the sentence, such an error in the sentence itself is a grave defect and in some cases 
the department has disapproved on that account. S. C. M. Rec. 22726, Sept. 20, 
1897. 

ERRORS IN COURT-MARTIAL ORDERS. See also Court-Martial Orders. 

1. Date of— Should be dated as of final action. See Court-Martial Orders, 6. 

2. Same— C. M. O. 22, 1896, is dated "February 19, 1895," instead of " February 19, 1896. " 

See Court-Martial Orders, 7. 

3. Same— C. M. 0. 15, 1916, erroneously dated C. M. 0. 15, 1915. 

ERRORS OF COURT IN FAVOR OF ACCUSED. C. M. O. 12, 1904; 20, 1905. 

ERROR WHICH DID NOT INVALIDATE. C. M. O. 22, 1915, 6. 

ERROR WITHOUT INJURY. See C. M. O. 120, 1898; 50, 1899; 50, 1900; 155, 1900; 181, 
1901; 19, 1919, 5; 48, 1915. See also Adjournment of Courts-Martial, 2,3. 

ESCAPE. 

1. Breaking arrest— "Was designated as escape at common law. File 26262-1065, J. A. 

G. See also Breaking Arrest, 6. 

2. Definition— The evidence here, so far as it goes, tends to indicate that the accused did 

not understand that he was placed under arrest. He "seemed to give no heed" to 
the action and words of the master-at-arms, and while it appears that he ran away 
and could not afterwards be found, this may very naturally have been due to his 
desire to escape from a hostile crowd rather than an intention to break arrest. "It 
would seem that there must be a criminal intent to evade the due course of justice" 
(16 Cyc, 541) in order to render one guilty of "escape," which is the common-law 
designation of the offense specified against the accused in this case. "An intent 
to escape is necessary to constitute the offense of escape." (2 Arch. Crim. Pr. and 
PL, 1074.) The fact that the accused voluntarily returned to his ship the next day 
further tends to indicate that he was not conscious that he was placed under arrest, 
and intended merely to escape from the vicinity of the crowd. The evidence is not 
sufficient, in the department's opinion, to show beyond a reasonable doubt that the 
accused was conscious that he was placed under arrest by the master-at-arms, and 
that, in leaving the place where he had been left by the master-at-arms without being 
guarded, he had a criminal intent to evade the course of justice, particularly in view 
of the fact that he voluntarily returned to his ship within a short time. The depart- 
ment feels less reluctance in arriving at this conclusion because of the circumstances, 
which plainly show that, even had the offense charged against the accused in this 
regard been proved, it would constitute at most a technical breaking of arrest rather 
than the offense of forcibly and willfully escaping from duly constituted authority after 
having been regularly placed under arrest in the usual manner, which is the offense 
commonly implied by this charge. C. M. O. 7, 1911, 12. See also Breaking Ar- 
rest, 14. 

3. Desertion— Escape and unauthorized absence as proof of specific intent to desert. C. 

M. O. 61, 1894, 2. 

4. "Enticing a prisoner to escape"— Enlisted man charged with. C. M. O. 4S, 1SS9. 

5. "Escaped convict." See Convicts, 3. 

6. Prisoners— Duty of guard. See Manslaughter, 9. 

7. Same — Accidental killing of innocent third party by member of guard when shooting 

at escaping prisoner. See Manslaughter, 9. 

ESTOPPEL. 

1. Accused — Failing to object at proper time. C. M. O. 6, 1915, 6. See also Evidence, 79-S4; 

Judge Advocate, 105. 

2. Challenges— Where the judge advocate challenges a member and counsel for the ac- 

cused objected, the accused is estopped to complain of the court's ruling which did 
not sustain the challenge. C. M. O. 12S, 1905, 4. See also Cahllenges/ 9. 

3. Definition. See Words and Phrases. 

4. Fraudulent enlistment— Accused eslopped to deny fraudulent enlistment when ho 

is being tried for offense, etc. File 7057-132, Jan. 9, 1911. 

5. General court-martial— Doctrine of estoppel as applied to. See Q . C. M. Rec. 23368. 



218 ESTOPPEL. 

G. Irregular proceedings— A prisoner on trial under our laws has no right to stand by and 
suffer irregular proceedings to take place, and then ask to have the proceedings re- 
versed on error on account of such irregularities. Thelaw, by furnishing him with coun- 
sel to defend him, has placed him on the same platform with all other defendants, and 
if he neglects in proper time to insist on his rights, he waives them. (McKinney v. 
People, 17 111., 556; 3 Rice on Evidence, 259.) C. M. O. 31, 1911, 5. 

7. Timely objections— Where the accused or his counsel failed to make timely objection 

to the presence of a judge advocate during "closed court" the department stated: 
"The accused, who was represented by able counsel at his trial, not having objected 
to the alleged incompleteness of the record at the proper time, is now estopped to 
urge that the record is incorrect." CM. 0.6, 1915,6. See also Judge Advocate, 105. 

8. Waiver of allowances by enlisted, men — An enlisted man is estopped by virtue of a 

waiver signed to claim reimbursement for transportation and subsistence denied him. 
File 13673-1442, J. A. G., Nov. 22, 1911, pp. 10, 14. See also Allowances, 14. 

9. Witnesses sworn by judge advocate — In the case of Commodore Barron in 1807, the 

witnesses were sworn by the judge advocate, although the statute then in force pro- 
vided that the oath should be administered by the president of the court. (Harwood 
on Naval Courts-Martial, 1867, p. 94.) In commenting upon this fact De Hart, in 
bis work on Military Law (1861), states at page 149, in a note, "Of course there was 
no judicial oath taken, and consequently no valid evidence heard." 

The Barron case was referred to the Attorney General in 1843, and an opinion was 
asked upon the following questions: 

"First. Does the fact that the witnesses were sworn by the judge advocate, and 
not by the president, there being no objection at the time, vitiate the proceedings? 

" Second. If yes, what relief can now be given? " 

The Attorney General, in holding that there was "no remedy which the executive 
department can afford in the premises," said significantly (4 Op. A. G., 171): 

"It is a vain conceit that because the proceedings are irregular, and fatally irregular 
(if the exception be taken in proper time), therefore the judgment once suffered to be 
entered up is void. Thus there are many things * * * in the conduct of a trial 
that make the verdict void; yet, if advantage be not taken of them by motion in 
arrest of judgment, no writ of error lies, even where there is a competent court of 
errors (Rob. Abr., 783; 4, Cro. Eliz.,616),and it is veryproper it should be so; * * * 
and the repose of society, and the putting an end to controversy and litigation, are 
more desirable than mere accuracy of procedure, or even the justice of a particular 
case — not to mention that acquiescence implies consent, and consent cures error." See 
Evidence, 84. 

EVADING DUTY. 

1. How charged. See Absence from Station and Duty Without Leave, 12. 

EVIDENCE. 

1. Accused, of. See Witnesses, 1-11. 

2. Same— Absence of during taking of testimonv. See Accused, 1-9. 

3. Acquittal— Because of lack of evidence. C. M. O. 25, 1909, 1; 26, 1909, 1. 

4. Additional— Warranting exercise of, clemency. See Clemency, 2. 

5. Admissions. See Admissions. 

6. Arresting accused, person — Whenever practicable, the evidence of a person making 

an arrest should be corroborated by other evidence, particularly when there are nu- 
merous witnesses thereto. CM. 0.7, 1911, 10. See also Arrest, 17; Evidence, 33-34. 

7. "Best evidence." See C. M. O. 28, 1909, 3; 37, 1909, 4; 47, 1910, 4, 6; 49, 1910, 10; 52, 

1910, 3. 

8. "Best evidence" rule. See Carbon Copies; Words and Phrases. 

9. "Better evidence"— Court should call for it if it is available. C M. O. 28, 1909, 3; 37, 

1909, 5, 9. 

10. Board of Investigation— As evidence. See Boards of Investigation, 5-8. 

11. Burden of Proof. See Burden of Proof. 

12. Character— The department has repeatedly held that witnesses will not besubpoenaed 

from other stations at Government expense where it does not appear that any such 
witness "has personal knowledge of the facts at issue before the court," but merely 
that their testimony is desired either as experts or as to character. These principles 
were stated in the department's letter of July 5, 1913, to the judge advocate of a general 
court-martial at the navy yard, Norfolk, Va., convened for the trial of certain special 
cases (file 26251 -7777:3). In said letter it is stated in part: 

"Under no circumstances will the department subpoena from other stations, at 
Government expense, officers to give expert testimony, either for the prosecution 



EVIDENCE. 219 

or the defense, when there are other officers on duty at the place of the trial whose 
service should render them fully competent to give such testimony. Furthermore, 
in accordance with the Navy Regulations [1913, R -702(2)], when a staff officer is tried 
by general court-martial, at least one-third of the court is composed of officers of the 
same corps as the accused, and this practice has been followed in the present case. 
Such members of the court may themselves qualify as experts concerning matters, 
pertaining to the duties of their corps, and testify accordingly as witnesses either 
for the prosecution or the defense. 

"If the testimony of particular officers is desired as to the character of the accused 
you are informed that the best evidence on this point is the official record of the 
accused, which has been forwarded to you in connection with this case." C. M. O. 
1, 1914, 5, 7. 

The recital of a conversation in which the character of the accused is assailed 
is, besides being hearsay, directly in conflict with the well-known rule of evidence 
that the prosecution has no right to attack the character of the accused or to introduce 
evidence showing bad character unless the accused himself has put his character in 
issue. CM. 0.57, 1897,2. 

In one case the department stated: It appears that in testifying for the prose- 
cution an officer referred incidentally to the fact that the accused had been tried by 
summary court-martial. Strictly speaking, this testimony was not proper, but it was 
evidently given inadvertently, and is not of such a character as to affect the proceed- 
ings. C. M. 0.33, 1899, 1. 

13. Same— The accused pleaded not guilty to the charge of "Desertion" preferred against 

him and the specification thereunder. The evidence adduced to establish said charge 
consisted solely of the testimony of the judge advocate of the court, who was also com- 
manding officer of the accused. This officer, in answer to a question, made the fol- 
lowing statement in the course of his testimony: 

A representative of the sheriff in Olympia, "in turning over the accused to me, 
reported that the accused had been arrested in Olympia, Washington, soon after 
March 19, 1902, for stealing a watch ; that he had been convicted, had served a sentence 
of 25 days, and had been released, and then rearrested, soon after his release, upon the 
receipt of my offer of reward." 

So much of the above testimony as relates to the offense for which the accused had 
been arrested and punished by the civil authorities was clearly inadmissible, as it 
was irrelevant to the case being tried and was, moreover, prejudicial to the rights of 
the accused, who had not in any way placed his general character in issue. 

Finally, the court concluded its examination of the judge advocate by asking the 
following question: 

" What has been the general character of the accused while serving at this station? ' ' 
the answer to which question was in part as follows: 

"He has quite frequently been in trouble for infringements of regulations." 

Here again a manifest injustice was done the accused by the court, which not only 
admitted, but expressly called for evidence affecting his former reputation and char- 
acter before the same had been made a part of the issue by the accused himself. 

The department held that the proceedings above set forth were so plainly violative 
of the fundamental principles of law and justice that the accused can not be said to 
have had a fair trial on this occasion, and that, irrespective of the question whether 
his guilt of the offense charged was established by such portions of the evidence as 
were competent, he ought not to stand convicted of and be punished for any offense 
as the result of a trial conducted as was the one under consideration. Accordingly 
the proceedings, finding, and sentence were set aside. C. M. O. 91, 1902. 

14. Same—In one case the department stated: It appears that the judge advocate intro- 

duced, and the court accepted, as evidence the conduct record of the accused, which 
action was improper, inasmuch as the accused had not during the trial put his charac- 
ter in issue. In viewof this error on the part of thecourt, the effect of which must have 
been detrimental to the interests of the accused, the proceedings, findings, and sen- 
tence in the case have been disapproved. C. M. O. 96, 1898. But see Summary 
Courts-Martial, 13. 

15. Same — Accused pleaded guilty, and after the finding of the court the judge advocate 

was instructed to introduce evidence of previous convictions, if any existed, to the 
admission of which the judge advocate raised the objection that as the accused had 
not placed his character in issue, the evidence called for was not admissible. This 
objection was overruled by the court. The Navy Regulations [Navy Regulations. 
1913, R-017 (3); R-804 (2)] provide for the admission of evidence of previous convic- 
tions and these regulations do not exempt from this provision cases wherein the char- 



220 EVIDENCE. 

acter of an accused has not been placed in issue, but it applies alike in all cases, and 
the ordinary rules of evidence as to character are to that extent modified thereby. 
Accordingly the department held that the ruling of the court was regular. C. M. O. 
98, 1898. 

16. Same— It appears that certain improper evidence was introduced by the prosecution 

and admitted by the court, that is, evidence relating to the previous character of the 
accused (which he had not put in issue), as illustrated by his conduct while in the 
naval hospital. This evidence appeared in the testimony of two witnesses. The 
accused objected to the testimony of only one of these witnesses, and the court improp- 
erly overrruled the objection. The department held that ' ' the offense alleged against 
the accused has, however, been so clearly established by the evidence that this may 
be regarded as constituting an error without injury, except in so far as it may have 
influenced the court in the severity of the punishment inflicted." Accordingly the 
department merely mitigated the sentence. CM. 0. 50, 1899. See also 23 J. A. G., 376. 

17. Same— Court-martial order introduced by prosecution to rebut evidence of good char- 

acter introduced by defense. C. M. O. 11, 1897, 2. See also Court-Martial 
Orders, 11. 

18. Same— While in civil courts particular good or bad acts can not be shown in proof or 

rebuttal of good character, in military cases this is not strictly followed. At military 
law evidence of character, which is always admissible, need not be limited to general 
character, but may include particular acts of good conduct, bravery, etc. Rebutting 
evidence of bad character in military cases may be of similar form and nature to the 
evidence of good character. C. M. O. 11, 1897, 2-3. 

19. Same — The accused introduced testimony as to character and efficiency and made a 

written statement in extenuation of his conduct, and the court added to the record 
a unanimous recommendation to clemency in the following terms: In consideration 
of the excellent record of the accused as testified to by witnesses for the defense, his 
medal of honor and commendatory letter, and the favorable impression made before 
the court, we recommend the said Boatswain * * *, United States Navy, to 
the clemency of the revising authority. C. M. 0. 118, 1905, 1. 

20. Same— Testimony as to character of a witness. G. C. M. Rec. 28652, 23; "Witnesses, 52. 

In cases where it is necessary the judge advocate should cross-examine witnesses 
as to the character of the accused. C. M. O. 39, 1915. 

If the judge advocate is called as a witness as to character, the record of proceedings 
should contain a notation to that effect as called for by the Forms of Procedure, 1910, 
p. 36. G. C. M. Rec. 30465, p. 2. 

21. Same — A wardroom cook was tried by general court-martial for "Desertion," and 

pleaded guilty to both the charge and specification thereof; though precluded by his 
plea from the benefits of a regular defense, he was, nevertheless, entitled to intro- 
duce evidence in extenuation of his conduct or to show his previous good character. 
The record of proceedings of his trial failed to show that opportunity to present such 
evidence was afforded him. 

When an accused has pleaded guilty, the court, before proceeding to deliberate and 
determine upon the sentence, shall allow him to urge anything he may desire to offer 
in extenuation of his conduct, to call witnesses as to character; and to offer any other 
evidence of a strictly palliative nature. (Art. 1749 (2), U. S. N. R. [Navy Regula- 
tions, 1913, R-778(2)]; Forms of Procedure, 1910, p. 22.) 

A general court-martial being a court of limited jurisdiction, each step taken during 
the trial should be set forth in the record of its proceedings; and consequently, where 
certain privileges are by law or regulations accorded an accused and he does not avail 
himself of them, the record should affirmatively show, by an appropriate entry, that 
he waived such rights; in this case, that he did not desire to offer any evidence. C. M. 
0. 14, 1910, 8. See also C. M. 0. 118, 1905, 1; 42, 1909, 12; 8, 1911, 4-6. 

22. Same— Evidence as to character erroneously admitted by court. C. M. 0. 104, 1896, 6. 

23. Circumstantial. See Desertion, 68 (p. 173); Intent, 49 (p. 294). 

24. Citizenship— Evidence of. See Citizenship, 13. 

25. Collateral facts— Illegal custom— Evidence that similar offenses had been committed 

by others during many years, and that inadequate penalties or no penalties at all 
had been inflicted, is immaterial as affecting the guilt or innocence of the accused. 
There can be no such thing as a lawful custom to commit a crime, and the fact that 
others had escaped punishment could in no wise justify the accused in violating the 
law. C. M. O. 128, 1905. See also Collision, 8. 

26. Same— Evidence to excuse in case of a collision. See Collision, 8; Evidence, 25. 

27. Common law rules of evidence, C. M. O. 21, 1910, 14. See also Common Law, 8. 

28. Competent evidence. See Deck Courts, 58; Evidence, 79; Witnesses, 29, 52. 



EVIDENCE. 221 

29. Confession. See Confessions. 

30. Conflict in evidence. See Criticism of Courts-Martial, 14. 

31. Contradictory testimony— It is the province of the court, after hearing the testimony 

of witnesses as to statements made by the accused, to weigh the same and determine 
for itself whether or not such statements are contradictory and false. C. M. O. 91, 
1902. See also Confessions, 19, 20. 

32. Coroner's inquest. C. M. 0. 5, 1913, 9-11. See also Confessions, 10. 

33. Corroboration— Whenever practicable, the testimony of a person making an arrest 

should be corroborated by other testimony, particularly when there are numerous 
witnesses thereto. C. M. O. 7, 1911, 10-12. See also Arrest, 17; Evidence, 6. 

34. game — While observations of the civil courts concerning the testimony of police officers 

may not be altogether applicable to the testimony of a master-at-arms; suggested, that 
whenever practicable the testimony of a master-at-arms who makes an arrest and 
accuses the offender should be corroborated, particularly where it appears that there 
were numerous witnesses to the facts charged. File 26262-1065. 

35. Same— Accused. See Witnesses, 4, 7, 9. 

36. Court— "Originating" evidence. C. M. O. 19, 1915, 3. See also Witnesses, 40. 

37. Same— Of its own motion may exclude. See Evidence, 82. 

38. Criminating questions. See Self-Incrimination. 

39. Death gratuity— Must be satisfactory to Paymaster General for payment of. See 

Death Gratuity, 21-23. 

40. Deck court — Appeal. See Deck Courts, 1, 2. 

41. Definition — "That which tends to prove or disprove any matter in question, or to 

influence the belief respecting it. Belief is produced by the consideration of some- 
thing presented to the mind. The matter thus presented, in whatever shape it may 
come, and through whatever material organ it is derived, is evidence (1 Bouv. 701). 

42. Degree of criminality involved— Where the accused has committed a grave offense 

and pleaded guilty the judge advocate should advise the court of the nature of the 
offense in order that evidence can be taken for the prosecution as provided by Navy 
Regulations, 1913, R-778(3), for the purpose of presenting the entire circumstances 
of the offense to the court. C. M. 0. 1, 1914, 5-6. See also C. M. 0. 50, 1900; Degree 
of Criminality Involved; Judge Advocate, 50, 70. 

43. Demurrer. See Demurrer. 

44. Discrediting testimony of a witness. See Self Incrimination, 11, 12; Witnesses, 

51, 52. 

45. Documentary. See Evidence, Documentary. 

46. Drunkenness— Evidence of. See Drunkenness, 34. 

47. Dying declarations. See Dying Declarations. 

48. Exclusion of. See Evidence, 82. 

49. Expert testimony. See Evidence, 12; Expert Witnesses. 

50. Extenuation— Should the accused persist in a plea of guilty, the court before proceeding 

to deliberate and determine the sentence, shall allow him to urge anything he may 
desire to offer in extenuation of his conduct, to call witnesses as to character, and to 
offer any other evidence of a strictly palliative nature; and the judge advocate shall 
have the right to cross-examine such witnesses and to introduce evidence in rebuttal. 
C. M. O. 42, 1909, 12; 14, 1910, 8; 8, 1911, 4-6. 

51. Same — If the evidence of the accused in extenuation after he has pleaded guilty is incon- 

sistent with such plea the court should have the accused change his plea to "not 
guilty." By a plea of guilty an accused deprives himself of the benefits of a regular 
defense and can call witnesses and introduce evidence only as to previous good char- 
acter or in extenuation of his conduct. C. M. O. 2, 1905; 30, 1910, 4; S, 1912, 5. See 
also Clemency, 20. 

52. Same — "It thus appears that practically the entire testimony (in extenuation) as to 

the intoxication of the accused introduced by the defense would have been inad- 
missible upon objection thereto." The evidence referred to is testimony to show that 
the accused was so drunk that he was unaware of what he was doing "when he com- 
mitted the acts alleged. C. M. O. 8, 1912, 5. Sec also Evidence, 60. 

53. Same. C. M. O. 17, 1915, 2; 23, 1915, 2. 

54. Facts — Evidence should be confined to testimony of facts; the inferences to be drawn 

from established facts must be drawn by the court alone. C. M. O. 49, 1915, 15. 

55. False swearing— Under charge of " Perjury." C. M. 0.47, 1910, 5. Sccalso PERJURY, 16. 

56. Same— Before a court of inquiry. (G. C. M. Kee. 29422.) C. M. O. 51, 1914. 9. See 

also Courts of Inquiry, 23, 40; Perjury, 3. 

57. False testimony— Under charge of "Perjury." C. M. O. 47, 1910, 5. Sec also Per- 

jury, 16. 



222 EVIDENCE. 

58. Finding— Additional evidence can not be taken after the court has reached its findings. 

Evidence of previous convictions irav te admitted however. See Previous Con- 
victions, 19; Revision, 14-16. 

59. "Guilty," plea of— After warning, should the accused persist in a plea of guilty, the 

court, before proceeding to deliberate and determine upon the sentence, shallallow 
him to urge anything he may desire to offer in extenuation of his conduct, to call 
witnesses to character, and offer any other evidence of a strictly palliative nature; 
and the j udee advocate shall have the right to cross-examine such witnesses and intro- 
duce evidence in rebuttal. (Navy Regulations, 1913, R-778 (2)). See C. M. O. 50, 
1900; 2, 1905, 3; 42, 1909, 12; 14, 1910, 8; 8, 1911, 4-6. See also Evidence, 21, 50, 51.60. 

60. Same— Accused may not testify after plea of "guilty.'' Accused pleaded " guilt y " 

of "Desertion ' ' and was then sworn as a witness and testified that he had no intention 
of deserting. Court found the specification "proved by plea" and that the accused 
was of the charge "guilty:" Held: That the accused, by his plea, deprived himself 
of the benefit of a regular defense and could call witnesses and introduce evidence 
only as to previous good character or in extenuation of his conduct. That the court 
erred in admitting this testimony after the plea, and also erred when, after hearing 
the inconsistent testimony, it did not change the pleas to not guilty and proceed with 
the trial. No evidence having been introduced to support the finding, and it not 
being permitted to introduce new evidence in revision, the proceedings, findings, 
and sentence were disapproved. C. M. O. 2, 1905, 3. See also Evidence, 52, 58. 

61. Hearsay. See Hearsay Evidence. 

62. Higher evidence. See C. M. O. 47, 1910, 7; 49, 1910, 10. 

63. Hypothetical questions. See Hypothetical Questions. 

64. Impeaching testimony of witnesses. See Impeachment. 

65. Incompetent — Failure to make objection to evidence until after conclusion of trial 

amounts to acquiescence. Testimony of an incorrpetent witness does not vitiate the 
proceedings necessarily. C. M. O. 21, 1910, 13-15; 14, 1911, 4-9; 31, 1911, 7. 

66. Incrimination. See Self- Incrimination. 

67. Informal evidence. See C. M. O. 37, 1909, 9. 

68. Initiative to object to evidence— Is on opponent. C. M. O. 31, 1911, 7. See also 

Evidence, 82. 

69. Insufficient to convict. C. M. O. 37, 1909, 4. See also C. M. O. 29, 1902. 

70. Intent, evidence of— That participants in a fight knew they were doing something 

wrong is sufficiently shown by their interrupting the fight when an officer was 
believed to be approaching. C. M. O. 128, 1905. 

71. Irrelevancy. See Evidence, 102, 103. 

72. Judge advocate — If authorized by convening authority may admit that a certain 

person, if present, would give certain testimony. See Admissions, 3. 

73. Judicial notice. See Judicial Notice. 

74. Leading questions. See Leading Questions. 

75. Miscarriage of justice— Caused by court receiving incompetent evidence. See Court, 

78. 

76. Misinterpretation of— By court. C. M. O. 37, 1915, 10. 

77. "Negative testimony." See Drunkenness, 100. 

78. Objection to competency— When to be taken. See Evidence, 79-84. 

79. Objection to introduction of— Failure to make objection to evidence until after 

conclusion of trial amounts to acquiescence. Testimony of an incompetent witness 
does not vitiate the proceedings necessarily. If, therefore, no objection is made 
during the trial to matters of evidence, any question as to its admissibility must be 
deemed to have been waived by the accused. C. M. 0. 14, 1911, 4-9; 31, 1911, 7. See 
also C. M. O. 47, 1910, 4; 15, 1910, 8; Deck Courts, 58 (p. 159). 

80. Same — Objections to rulings on the admission of evidence in a criminal case, taken 

after the evidence has been closed on both sides, are too late. McDuffie et al. v. U. S., 
227 Fed. Rep., 961. 

81. Same— By court. See Evidence, 82 (p. 223). 

82. Same— II the evidence had, in fao.t, been objectionable on the ground of inadmissibility , 

by whom should this objection have been made? Should the court interpose sua 
sponte and reject evidence which is offered, and, if it does not, should the reviewing 
authority reject it when the case comes before him? 

"The initiative in excluding improper evidence is left entirely to the opponent— 
so far at least as concerns his right to appeal on that ground to another tribunal. The 
judge may of his own motion deal with offered evidence; but for all subsequent pur- 

Eoses it must appear that the opponent invoked some rule of evidence." (Wigmore, 
ec. 18.) 



EVIDENCE. 223 

Cases where the court might, of its own motion, refuse to permit the introduction 
of evidence are conceived to be those in which some rule of public policy would be 
contravened, as in the case of privileged communications, between husband and wife, 
State secrets, etc. But aside from these a trial court would not ordinarily intervene, 
and would leave the matter of objection to the party against whom it was offered. 

An accused either has counsel, or waives such assistance, as did the accused in this 
case; but even then, the recorder is required to safeguard the interests of the accused. 
As was said in McKinney v. People (17 111., 556), quoted in 3 Rice on Evidence, 259: 

"A prisoner on trial under our laws has no right to stand by and suffer irregular 
proceedings to take place, and then ask to have the proceedings reversed on error on 
account of such irregularities. The law, by furnishing him with counsel to defend 
him, has placed him on the same platform with all other defendants, and if he neglects 
in proper time to insist on his rights, he waives them." 

If, therefore, no objection is made during the trial to matters of evidence, any 
question as to its admissibility must be deemed to have been waived by the accused. 
C. M. O. 31, 1911, 6-7. See also 16 J. A. G., 78; Reviewing Authority, 9. 

83. Same — If no objection is made to the introduction of evidence given during the trial 

by naval court-martial, then, in accordance with ordinary procedure, there is nothing 
in question for the reviewing authority to decide as to the admissibility of evidence. 
A possible exception to this, however, in view of the greater latitude allowed in all 
courts-martial procedure, would be a case where the trial had ignored the objec- 
tionable character of certain evidence on the ground of public policy. If objection- 
able evidence is given without objection, its inadmissibility must be deemed to have 
been waived. File 26262-1194, J. A. G., June 16, 1911, p. 3. See also 16 J. A. G., 78; 
Reviewing Authority, 9. 

84. Same — "It is a vain conceit, that because the proceedings are irregular, and fatally 

irregular (if the exception be taken in proper time), therefore the judgment once suffered 
to be entered up is void. Thus there are many things * * * in the conduct of a 
trial, that make the verdict void; yet, if advantage be not taken of them by motion 
in arrest of judgment, no writ of error lies, even where there is a competent court of 
errors (Rob. Abr.,783;4Cro. Eliz., 616), and it is very proper it should be so; * * * 
and the repose of society, and the putting an end to controversy and litigation, are 
more desirable than mere accuracy of procedure, or even the justice of a particular 
case — not to mention that acquiescence implies consent, and consent cures error." (4 
Op. Atty. Gen., 171.) C. M. 0. 13, 1916, 6. See also Estoppel, 9. 

If the defect is discovered before the jury retires, it must be taken advantage of at 
once, as inaction in such a case amounts to an acquiescence in the reception of the 
unsworn witness's statements. (30 A. and E. Enc, 910.) 

"Where irrelevant evidence has been admitted or an incompetent witness has 
been examined it is not held sufficient to vitiate the proceedings; and the reviewing officer, 
on a consideration of all the circumstances, may either confirm the sentence or extend 
his pardon to the prisoner. If the finding of the court, in such case, be agreeable to 
equity and justice, there are not sufficient grounds for a pardon." (De Hart, p. 205.) 

In criminal as well as in civil actions, when the witness leaves the stand, there is 
an end of all questions as to his competency; it is then too late to object on this ground, 
especially if his incompetency appeared when he was first on the witness stand. 
(30 A. & E. Encycl. Law, p. 971.) C. M. O. 14, 1911, 5-7. 

85. "Official knowledge"— An accused was tried before a summary court-martial for 

absence without leave and was acquitted because the court accepted the recorder's 
statement as conclusive that no witnesses to prove the offense were available. The 
department stated: 

It is suggested that the commanding officer who preferred the charge would have 
been a competent witness to testify before the court as to such facts pertaining to the 
specification as were within his official knowledge, and which therefore induced him 
to cause the accused to be brought to trial by summary court-martial. C. M. O. 42, 
1909, 16. 

86. Opinions. See Expert Witnesses, 12, 13; Opinion. 

87. Oral testimony— For defense is not admissible to prove the contents Of certain loiters 

when those letters were in possession of counsel for the accused and could have been 
produced in court. C. M. 0. 119, 1905. 

88. Same— All testimony before a summary court-martial shall be given orally, upon oath 

or affirmation, administered by the senior member of the court. (A. G. N. 29.) 

89. Order of introducing— May be introduced out of usual order for satisfactory cause 

at discretion of court— After the prosecution and defense had rested, the judge advo- 
cate in rebuttal called a witness who had previously testified for the prosecution 

50756°— 17 15 



224 EVIDENCE. 

and again questioned said witness concerning the condition of the accused on the 
four dates mentioned in the specifications. Counsel for the accused objected on the 
ground that the proper place to introduce such evidence was in the former direct 
examination of this witness. The objection of counsel for the accused was properly 
overruled by the court. (Forms of Procedure, 1910, pp. 39 and 144; Navy Regulations, 
1913, R-780.) C. M. O. 31, 1914, 2. See also G. C. M. Rec. 27285, p. 181; 29422; 30485. 

90. Same — After the court had admitted certain evidence out of usual order the judge 

advocate stated that he desired it spread on the record that such procedure in ad- 
mitting the evidence out of its usual order was not in accordance with the prescribed 
forms and practices. The judge advocate was in error in thus advising the court 
since the Navy Regulations, 1913, R-780, authorize the court, in the interest of justice, 
to allow evidence to be introduced out of usual order. Index-Digest, 1914, page 19, 
states that evidence may be introduced out of usual order for satisfactorv cause at the 
discretion of court. (See also Forms of Procedure, 1910, pp. 39, 144; C. M. O. 31, 1914, 
p. 2.) C. M. O. 41, 1915, 10. 

91. Originating evidence — By court. See Court, 75; Witnesses, 40. 

92. Parol— In proving desertion. C. M. O. 31, 1915, 16. See also Service Records, 16. 

93. Perjury — Evidence necessary to prove guilt. See File 26262-1569, Sec. Navy, Dec. 

18, 1912. See also Perjury, 6. 

94. Previous convictions. See Previous Convictions. 

95. Prima facie evidence. C. M. O. 9, 1916,9. See also Desertion, 102-105; Discrimina- 

tion Against Uniform, 1; Embezzlement, 24. 

96. Primary evidence — Waived if accused has counsel and does not object to introduction 

of secondarv evidence. C. M. O. 47, 1910, 4; 15, 1910, 8. Seealso C. M. O. 49, 1910, 15. 

97. Privilege. See Counsel, 4, 43; Evidence, 82, 83; Privilege; Self-incrimination; 

Wife. 

98. Quantity of. See Evidence, 126; Reasonable Doubt. 

99. Rambling— Objected to, G. C. M. Rec. 304S5, pp. 332, 357. 

100. Reasonable doubt. See Reasonable Doubt. 

101. Rebutting. C. M. O. 31, 1915, 15. 

102. Relevancy — Judge advocate shall point out to court the irrelevancy of any evidence. 

C. M. O. 49, 1915, 11. See also Judge Advocate, 59, 68. 

103. Same— Evidence must be relevant to issue. C. M. O. 48, 1915, 14. 

104. Revision — Illegal to introduce evidence in revision. See Revision, 14-16. 

105. Same— Under certain conditions, evidence of previous convictions may be admitted in 

revision. C. M. O. 29, 1914, 5. See ateo Previous Convictions, 19. 

106. Rules of evidence — Naval courts-martial in their proceedings should be governed by 

the rules of evidence as laid down in the United States courts. C. M. O. 21, 1910, 
13-14; 51, 1914, 4, 7-8; G. C. M. Rec. 24813; File 4578-04, May 25, 1904. 

107. Same— Naval courts-martial are bound by the decisions of the Supreme Court of the 

United States with regard to the introduction of evidence and its admissibility. 
C. M. O. 31, 1911, 5; 16 J. A. G. 78. 

108. Same — As no statute prescribes the rules of evidence to govern naval courts-martial, 

courts and boards, they are made by the department and published in Forms of 
Procedure and Court-Martial Orders. If a desired rule is not found in the above 
publications, the rule applied by Federal courts should be followed. If such rule 
can not be secured from the above sources, the tribunal must rule as it thinks just 
and reasonable. File 5252-74. 

109. Same— The rules of evidence of the common law as recognized and followed by the 

criminal courts of the countrv are to be observed in general by courts-martial. File 
6465-03, J. A. G., July 22, 1903, p. 10. 

110. Secondary evidence. C. M. 0. 119, 1905; 47, 1910, 6, 7; 49, 1910, 10, 15. 

111. Self-incrimination. See Self-Incrimination. 

112. Self-serving statements— Not competent. C. M. O. 29, 1914, 8. See also Self- 

Serving Statements; Words and Phrases. 

113. Silence of accused— As an admission of guilt. See Confessions, 22. 

114. Single witness— The evidence of a single witness against the accused, as to the details 

of a "riot or furious affray, " should be regarded with much caution, since no single 
witness can tell with absolute precision what took place and describe accurately all 
the details. C. M. O. 7, 1911, 8. See also Evidence, 128. 

115. Statements made in presence of accused. See Statements Made ln Presence 

of Accused. 

116. Statements of accused. See Statement of Accused. 

117. Sufficiency of evidence. See Criticism of Courts-Martial, 14. 

118. Summary courts-martial. See Evidence, 88. 



EVIDENCE. ' 225 

119. "Testimony"— "Testimony and other evidence"— Distinction between "testimony" 

and "evidence." C. M. O. 41, 1888, 6. 

120. Unobjected to— Convening authority should not notice. See Convening Authority , 

23; Evidence, 82, 83, 125; Reviewing Authority, 9. 

121. Verification of— By witnesses is mandatory, and can not be waived. C. M. O. 47, 

1910, 6; 3, 1917, 5. See also G. C. M. Rec. 21196; 21198. 

122. Same— Material corrections of testimony on verification should not be made in absence 

of accused. See Accused, 4. 

123. Same— Witnesses should verify testimony before finding and sentence. C. M. O. 14, 

1910, 9. 

124. Voir dire. C. M. O. 128, 1905, 2; G. C. M. Rec. 27960. See also Voir Dire. 

125. Waiving of objectionable evidence— If no objection is made during the trial to mat- 

ters of evidence, any question as to its admissibility must be deemed to have been 
waived by the accused, and in accordance with ordinary procedure there is nothing 
in question for the reviewing authority to decide as to the admissibility of evidence. 
C. M. O. 21, 1910, 13-15; 14, 1911, 4-9; 31, 1911, 7. See also Evidence, 78-83; Evi- 
dence, Documentary, 59, 60. 

126. Weight of evidence. See Drunkenness, 100; Evidence, 31; Reasonable Doubt; 

Witnesses, 4, 52, 112-114. 

127. Wife of accused. See Evidence, 82; Wife. 

128. Witnesses, excited — Excited witnesses of a riot or furious affray are not likely to 

comprehend and remember accurately the movements of the various persons actually 
engaged. The truth is that no two witnesses on such occasions quite agree as to the 
details of an occurrence and no single witness can tell with absolute precision what 
took place and describe accurately all the details. The confusion and excitement of 
a crowd must have prevented witnesses from hearing distinctly and comprehending 
the movements of persons most actively engaged. File 26262-1065 ; Evidence, 114. 

129. Witnesses, manner and bearing— That the manner of the witness on the stand— 

his appearance, demeanor, style of expressing himself, etc. — is proper to be consid- 
ered in connection with his testimony as adding to or detracting from his credibility 
and relative weight, is a point frequently noted by the authorities. C. M. O. 63, 
1899, 2. See also Court, 198; Witnesses, 52, 76. 

EVIDENCE, DOCUMENTARY. 

1. Affidavit. See Affidavits. 

2. Authentication of documents— During the course of a general court-martial trial 

of an officer it was desirable to introduce in evidence his medical record. Accordingly 
a copy authenticated by the Chief of the Bureau of Medicine and Surgery was intro- 
duced. It was not under seal. Later during the trial a member moved to strike 
it out on the ground that it was not properly authenticated. The court did not 
strike it out but permitted the introduction of a properly authenticated copy under 
seal of the department in accordance with the provisions of Navy Regulations, 1913, 
R-751(3), Revised Statutes, 882, and Forms of Procedure, 1910, pp. 32, 141. G. C. M. 
Rec. 30485, pp. 684-685. 

3. Same — The law ; when copies are made evidence by statute, demands that the mode 

of authentication, prescribed by statute, shall be"strictly pursued. (Smith v. U.S., 
5 Peters, 290-300; Block v. U. S., 7 Ct. Cls., 414.) 

4. Boards of investigation. See Boards of Investigation, 5-8. 

5. Carboncopies. See Carbon Copies, 1. 

6. Certificate of civil officer— Is secondary evidence. See Certificates, 3-5. 

7. Same— Written statement of civilian sergeant of police is only hearsay. Sec Cer- 

tificates, 5. 

8. Checks, photographic copies. See Checks, 6; Evidence, Documentary, 37. 

9. Confessions. See Confessions. 

10. Copy— A copy of a document of any kind is nevjr competent evidence [except when 

made so by statute] when it is practicable to produce the original in the case. The 
fact that a copy submitted is certified to by the judge advocate shows conclusively 
that if it was available for the purpose of making a copy, it was also available for 
introduction as evidence, and therefore such copy as introduced is whollv incompe- 
tent as evidence. C. M. O. 40, 1909, 2. See also West Virginia v. U. S., 37 Ct. Cls.. -01. 
205. 

11. Court-martial orders. See Court-Martial Orders, 11, 26-2S. 

12. Court of Claims— Calls for evidence. See Court of Claims, 1, 3. 

13. Court of inquiry record. See Courts of Inquiry, 17-21. 

14. Court of inquiry findings— As evidence. See Courts of Inquiry, IS, 24. 

15. Depositions. See Depositions. 



226 EVIDENCE, DOCUMENTARY. 

16. Efficiency reports of officers. See Repoets on Fitness. 

17. Enlistment records. See Seevice Recoeds. 

18. Examining board records. See Naval Examining Boaeds, 12. 

19. Facts recorded as official duty— It is an elementary rule in the law of evidence that 

where facts are recorded as a matter of official duty at or about the time of the trans- 
action recorded, the contents of such records or documents are proven by the pro- 
duction of the records or documents themselves, and by proof that they come from 
the proper custody. Matters so proved are treated as" prima facie evidence of the 
facts stated therein. (See Jones on Evidence, sec. 521.) These remarks apply to 
the entries on the enlistment record referring to a charge of "Desertion" entered 
thereon by the commanding officer of the naval vessel on which the accused was 
serving when he deserted. C. M. 0. 10, 1912, 8. See also C. M. O. 31, 1915; Seevice 
Recoeds, 16. 

20. General orders of Army. See Aemy, 15. 

21. Identification of— A judge advocate offered a paper (receipt for transportation) in 

evidence, stating that it was signed by the accused, but it had not been identified 
in anyway, and the department held that the objection to this paper going in evidence 
was a good objection and should have been upheld by the court. C. M. 0. 17, 1910, 4. 

22. Interpretation of— What evidence may be given. C. M. O. 52, 1910, 2. 

23. Letters. See Lettees. 

24. Letter press copies. See Caebon Copies, 1. 

25. Marine examining boards. See Naval Examining Boaeds, 12. 

26. Naval examining boards. Sec Naval Examining Boaeds, 12. 

27. Objection to— Documentary evidence against accused should be submitted to him 

for the purpose of affording him an opportunitv to make reasonable objection to its 
introduction. C. M. O. 37, 1909, 9; 47, 1910, 4;" 49, 1910, 16. See also G. C. M. Rec. 
30485, p. 318. 

28. Same— Primary documentary evidence is waived if unobjected to. C. M. O. 47. 1910, 4; 

52, 1910, 3. 

29. Same. See Evddence, 78-84. 

30. Officers' records. See Recoeds of Officees; Repoets on Fitness. 

31. "Official reports "— Made contemporaneouslv with facts stated. See Evidence, 

DOCUMENTAEY, 19; SEEVICE RECOEDS, 16. 

32. Official duty— Facts recorded as. See Evidence, Documentaby, 19. 

33. Press copies. See Caebon Copies, 1. 

34. Previous convictions. See Pbeviocs Convictions. 

35. Privilege. See Petyilege; Self-Incehiination; Wife. 

36. Procedure in introducing— Documentary evidence before courts-martial will be 

introduced by the proper custodian taking the stand as a witness to identify such 
document, presenting it to the party against whom it is to be offered for inspection 
and opportunity to object to its admission, and also to the court; then if no reasonable 
objection is ma'de, reading therefrom such entry as may be pertinent to the issue. 
Upon objection being entered by the party against whom it is offered, the court will 
rule upon the objection and its decision thereon is final. (Forms of Procedure, 1910. 
p. 31; C. M. O. 37, 1909, p. 9; 40, 1909. p. 2; 47, 1910, p. 4: 2S, 1910, p. 7; 1, 1911, p. 5.) 
C. M. O. 41, 1914, 4; 15, 1916, 3. See also Seevice Recoeds, 23. 

37. Same — It was noted that the counsel for the accused irregularly introduced documen- 

tary evidence in the form of a letter addressed to the agent of the accused and also 
photographic copies of certain checks. The record does not show that either the 
court or the judge advocate was afforded an opportunity to object to the introduction 
of these documents, or even that the same were received in evidence by the court. 
Also the judge advocate irregularly introduced documentary evidence in the form of 
a letter written by the Army and Navy Club to the Navy Department. 

The proper procedure in introducing documentary evidence is to have the proper 
custodian take the stand as a witness to identify such document, presenting it to 
the party against whom it is to be offered for inspection and opportunity to object 
to its admission, and also to the court; then if no reasonable objection is made, to ask 
witness to read therefrom such extracts as may be pertinent to the issue; and finally 
either the original or certified copy of the extract read should be appended to the 
record. (Forms of Procedure 1910, p. 31; Index-Digest, 1914. p. 19.) 

In the present case the record does not positively show, as should be the case, that 
the above-mentioned documents were properly identified before being introduced; 
that they were submitted to both the court and the accused, or to the court and the 
judge advocate, depending upon the use to be made of this evidence: and whether 
or not objection was made to its receipt in evidence and the court's action thereon. 



EVIDENCE, DOCUMENTARY. 227 

Also, in consequence of the irregular manner of their introduction, the court did not 
pass upon the question of the competency or relevancy of these documents as evidence 
to be used in the trial of this case, and the court thereby and to that extent failed to 
fully perform its functions as a court. C. M. 0. 15, 1916, 3. 

38. Quarterly clothing return. See Quarterly Clothing Returns. 

39. Reading from— It is improper, and in violation of the rules of evidence, to read from 

a document until it has been properly introduced in evidence. The document in 
this case was the appointment of the accused as petty officer. C. M. O. 49, 1910, 16. 
See also C. M.O.I, 1911, 4. 

40. Same— Should be offered in evidence before being read. C. M. . 37, 1909, 9; 40, 1909, 2; 

47, 1910, 4; 49, 1910, 16. 

41. Beading "aloud." See Aloud, 1. 

42. Records of officers. See Records of Officers; Reports on Fitness. 

43. Record of Army trial— The record of trial by general court-martial while serving in 

the Army is inadmissible as evidence to show mental irresponsibility in a trial before 
a naval court-martial subsequently, and a request by the defense for postponement 
until copy of such record of trial is secured was properly overruled. C. M. O. 17, 
1910, 9. See also Army, 13. 

44. Record of proceedings— Not competent as evidence in another trial. C. M. . 47, 1910, 

6; 49, 1910, 10. See also False Swearing, 5. 

45. Record of proceedings should show — The record of proceedings should show affirma- 

tively that the documentary evidence was properly identified; that it was submitted 
to the party against whom offered and the court; whether objection was made to its 
receipt in evidence; and if objected to, the court's action thereon; that it was received 
in evidence if unobjected to or the court permitted it to be received over an objection; 
and finally notation made as to whether the original or a certified copy of the extract 
read is appended to the record. (Navy Regulations, 1913, R-780 (2); Forms of Pro- 
cedure, 1910, pp. 31-32; C. M. O. 28, 1909, p. 2; 37, 1909.. p. 9; 40, 1909, p. 2; 42, 1909, p. 11; 
47, 1910, p. 4; 17, 1910, p. 4; 28, 1910, p. 7.) When documentary evidence is ruled out, 
neither the original nor a certified copy need be appended to the record, but its con- 
tents should be referred to. so that the reviewing authorities may know what the 
documents was. (Forms of Procedure, 1910, p. 33.) C. M. O. 41, 1914, 4-5. 

When documentary evidence is offered, it must be in public session of the court, 
and, if admitted, the document in full, or an authenticated copy thereof, must be 
appended to the record. (R-780 (2).) See C. M. O. 108, 1899. 

46. Records of officers— As evidence. See Records of Officers; Reports on Fitness. 

47. Reports of deserters received on board. See Reports of Deserters Received 

on Board; Service Records. 

48. Reports on fitness. See Records of Officers; Reports on Fitness. 

49. Report of surgeon. See Drunkenness, 34, 100; Epilepsy, 3. 

50. Ruled out by court. See Evidence, Documentary, 45. 

51. Rules of evidence— Should be closely observed. C. M. O. 49, 1910, 16. 

52. Same— To be followed by naval courts-martial. See Evidence, 106-109. 

53. Service records. See Service Records. 

54. Ship's log— To show who was officer of the deck. See Ship's Log as Evidence. 

55. Statement of accused, written. See Statement of Accused. 

56. Telegram— To prove desertion. C. M. O. 110, 1896, 3. See also Telegrams, 1. 

57. Textbook— As evidence. See G. C. M. Rec. 23037, p. 89; 30669, p. 37; Text Books. 

58. True copy— A true copy should be an exact copy. C. M. 0. 17, 1910, 3; 23, 1910, 3. See 

also Certified Copies, 1, 2. 

59. Unobjected to— Convening authority should not notice. See Convening Author- 

ity, 23; Evidence, 82, 83, 125; Reviewing Authority, 9. 

60. Waived— Documentary evidence against accused should be submitted to him for the 

purpose of affording him an opportunity to make reasonable objection to its intro- 
duction in evidence. But where such was not done, the accused being represents! 
by civilian counsel, there were no objections entered, and no injury done accused, as 
he was acquitted, the department held that such irregularity was not considered 
sufficient to invalidate the proceedings. C. M. O. 47, 1910, 4. See also Evidence. 125. 

61. Same— Original evidence is waived if secondary evidence unobjected to. C. M. O. 

52, 1910, 3. 

EXCEPTIONS. 

1. Findings. See Findings, 27-37. 

2. Record of proceedings— Neither the accused (or counsel), judge advocate, nor any 

member of the court lias any right to enter an objection or protest on the record. 



228 EXCEPTIONS. 

(Navy Regulations, 1913, R-752 (2).) C. M. O. 17, 1910, 11; 21, 1910, 13-14; 23, 1910, 3; 
19, 1912, 6; 49, 1915, 11; File 26287-3475, Sec. Navy, July 5, 1916. See also Bills of 
Exceptions, 1. 

3. Same — Counsel for accused, in a summary court-martial case, repeatedly "noted an 

objection" to rulings of the court— this in violation of Navy Regulations, 1913, 
R-611 (9), R-752 (2); C. M. O. 49, 1915, 11. File 262S7-3475, Sec. Navy, July 5, 1916. 

See G. C. M. Rec. 16098, p. 4, where counsel for accused asked for an "exception," 
which the court granted. 

In commenting upon a certain case the department stated in part: "It may further 
be remarked that counsel for the accused repeatedly 'noted an objection' to the rul- 
ings of the court, this in violation of articles R-611 (9) and R-752 (2), Naw Regula- 
tions, 1913 (C. M. O. 49, 1915, p. 11)." File 26287-3475, Sec. Navy, July 5, 1916. 

4. "Statement of exceptions"— As to findings and opinion by Court of Inquiry by the 

applicant. Ct. Inq. Rec. 4952, pp. 1831, 1843. 

EXCESSIVE SENTENCES. 

1. General court-martial — Accused was tried for "Absence from station and duty 

without leave," "Theft," and "Scandalous conduct tending to the destruction of 
good morals." Limitations to punishments were, respectively: Six months, two 
years, and two years. Sentence was four years six months. Court exceeded its 
powers, sentence reduced to three years, and it is believed that such reduction will 
be in interests of justice, irrespective of whether the court was within its powers, 
because of small value of articles stolen. Second and third charges were same offense. 
File 26251-3756; 2, JAG, Nov. 15, 1912. See also Excessive Sentences, 3. 

2. Same — The accused (paymaster's clerk) was tried on three charges, "Assault 

with intent to commit rape," "Indecent assault," and "Scandalous conduct tend- 
ing to the destruciion of good morals." All of the charges and the specifications 
thereunder were one and the same transaction. The court sentenced the accused to 
dismissal and imprisonment at hard labor for thirty years. 

This case was approved by the Department on December 1, 1913, with the following 
remarks: 

All of the charges and the specifications thereunder allege one and the same transac- 
tion. The court, therefore, should have imposed but one penalty, and should not 
have sentenced the accused to a greater punishment than that authorized for the 
highest degree of the crime of which the accused was found guilty. 

"Where two counts in an indictment charge different crimes, which are of the 
same character and which grow out of the same. transac lion yet differ in degree, the 
sentence based on a general verdict of guilty must impose only one penalty, and a 
separate sentence for each crime, imposing a* separate punishment for it, is erroneous 
and void." (12 Cyc. 774.) 

"Where, as is a common practice, one crime is charged in several good counts in 
one indictment, in different degrees, and a general verdict of guilty is rendered thereon 
on sufficient evidence, the accused may be sentenced upon that count of the indict- 
ment which charges the highest degree of crime. " (12 Cyc. 775.) 

"When an indictment has several counts which either charge the same offense in 
different counts, to guard against insufficiency of allegation, or which, in fact, as well 
as form, refer to and charge separate and distinct offenses, the sentence to be imposed 
upon a conviction grounded on such indictment will depend upon whether the use 
of the multiplicity of counts was for one or the other of these purposes." (25 Am. &. 
Eng. Enc. of Law, 308.) 

A recent case in support of the doctrine quoted, supra, is that of the Standard Oil Co. 
of Indiana v. United States (164 Fed. Rep. 376.) In this case a U. S. District Court 
found the plaintiff in error guilty upon 1,462 counts of an indictment and assessed the 
plaintiff the maximum fine for each count. In this case each count was based upon an 
illegal concession of each and every shipment made by the plaintiff in error, irrespec- 
tive of whether each shipment was of the same or of a different transaction. In speak- 
ing of this feature. Judge Grosscup, of the Court of - K ppeals, said: 

"The offense of accepting a concession is the 'transaction' that the given rebate 
consummates — not the units of mere measurement of the physical thing transported, 
but the 'transaction' whereby the shipper, for the thing shipped, no matter how 
great or how little its quantity, received a rate different from the established rate— 
the wide range between the maximum and minimum punishment being doubtless 
thought to be a sufficient range within which to differentiate the punishment adapted 
to one transaction from the punishment adapted to another. The number of offenses 
in the present case should have been ascertained in accordance with these princi- 
ples. The measure adopted by the trial court was wholly arbitrary— had no basis 



EXCESSIVE SENTENCES. 229 

in any intention or fixed rule discoverable in the statute. And no other way of measuring 
the number of offenses seems to have been given a thought either by the Government 
or the trial court." 

The judgment of the district court was reversed and the case remanded with 
instructions to grant a new trial, and proceed in further accordance with this opinion. 

In view of the foregoing, the department considered that the court has adjudged 
an excessive punishment in the present case, and that in accordance with the well- 
established rule of law, the sentence should not have been greater than the punish- 
ment authorized for the highest offense of which the accused was found guilty, which, 
in this case, is scandalous conduct tending to the destruction of good morals, the 
maximum punishment for which offense, in the case of an officer, is dismissal and 
imprisonment at hard labor for fifteen years. 

Although it is considered that the sentence is in excess of the punishment authorized 
by law, only the unauthorized portion of the sentence is void. This appears to be a 
settled rule of law. A leading case bearing upon this feature is that of U. S. v. Pridgeon, 
153 U. S., 48, in which it is stated: 

" Where a court has jurisdiction of the person and the offense, the imposition of a 
sentence in excess of what the law permits does not render the legal or authorized 
portion of the sentence void, but only leaves such part of it as may be in excess open 
to question and attack." [See also Howard v Moyee, (206 Fed. Rep. 555)]. 

In view of the foregoing, the proceedings and findings in this case were approved, 
but as the maximum punishment which can be imposed for any one of the charges 
of which the accused was found guilty is dismissal, and imprisonment at hard labor 
for fifteen years, the department, on December 1, 1913, set aside so much of the sen- 
tence as relates to imprisonment which is in excess of fifteen years. The department 
in its action also approved the action of the convening authority that the Government 
prison at the United States Naval Station, Tutuila, be designated as the place for the 
execution of that part of the sentence which relates to imprisonment at hard 
labor. C. M. O. 35, 1913. See also C. M. O. 211, 1902; 108, 1905; 42, 1909, 9; 15, 1910, 12. 
3. Same — Prior to April 12, 1911, the department had held that a sentence which exceeded 
the period of limitation to punishment prescribed by the President, and which was 
not cured by the court in revision, was (1) illegal; (2) irregular; and (3) "in excess o f 
that allowed by law." But on that date the department held that so much of the 
confinement as exceeded the period of limitation prescribed was not capable of 
execution; that the sentence in that respect was void ab initio and that the approval 
of the excessive part of the sentence could be and properly should be set aside as 
void. But so much of the confinement as was within the period of limitation was 
held to be valid and capable of execution, and the approval of the sentence was held 
to be valid as to that part which did not exceed the limitation prescribed. 

The rule is that the sentence is legal when it is in the form required and proper in 
its nature, provided the excess is separable and may be dealt with without dis- 
turbing the valid portion of the sentence. But a sentence providing for "flogging" 
in addition to confinement at hard labor would be different in nature and could not 
be separated, and would be illegal. G. C. M. Rec. 23271. 

4. Same— For sentences which exceeded the limitations, see C. M. O. 42, 1909, 11; 49, 1910, 

17; 14, 1910, 7; 15, 1910,7; 17, 1910, 6; 26, 1910, 5; 28, 1910, 5; 30, 1910, 8; 19, 1911, 4; 
2, 1912, 4; 6, 1913, 4; G. C. M. Rec. 23271. 

5. Summary court-martial — Where an enlisted man has been sentenced to lose pay in 

excess of three months, the department held that when the court has jurisdiction 
over the person and offense the sentence is legal so far as it is within the provisions of 
law, and that it is void only as to the excess when such excess is separable and may 
be dealt with without disturbing the valid portion of the sentence. The department 
accordingly set aside as void so much of the loss of pav as was in excess of that which 
a summary court-martial is authorized to adjudge. File 26287-11543, Sec. of Navy, 
April 2, 1913. See also G. C. M. Rec. 23271. 

EXCLUSION OF WITNESSES FROM COURT ROOM. See Expert Witnesses, 10 

EXCUSE. 

1. Drunk "night before" — No excuse for being drunk next morning. See Drunk- 

enness. 61. 

2. Drunkenness, voluntary — No excuse for unauthorized absence. See Absence from 

Station after Leave had Expired, 9, 10; Drunkenness, 1. 

3. Ignorance of law— No excuse. See Court, 87; Desertion, 110; Fraudulent En- 

listment, 23; Ignorance of Law. 

4. Insanity. Sec Insanity, 13. 

5. Positive belief— That an act is lawful is no excuse, etc. C. M. O. 10, 1913, 4. 



230 EXEMPTIONS IN SENTENCES. 

EXECUTING A FRAUD AGAINST THE UNITED STATES IN VIOLATION OP 
ARTICLE FOURTEEN OF THE ARTICLES FOR THE GOVERNMENT 
OF THE NAVY. 

1. Officers— Charged with. C. M. O. 27, 1911; 7, 1913. 

2. Paymaster's clerk— Charged with. C. M. O. 29, 1911; 26, 1915. 

EXECUTION OF DISCHARGE AS A REMISSION OF PAT. See Bad-Conduct 
Discharge, 3. 

EXECUTIVE OFFICER. 

1. "Aid or Executive"— At one time Executive officer was so called. G. 0. 194, August 2, 

1875. 

2. Oaths— Administration of. See Oaths, 16-18, 49. 

EXECUTIVE ORDER. 

1. Marines— Detached for service with Army. C. M. O. 31, 1915, 6-10. See also Marines 
Serving with Army. 

EXEMPTIONS IN SENTENCES. 

1. Convening authority can not commute— The department stated in part: It 

"appears that the commander in chief, in mitigating the sentence, has violated 
article 54 of the Articles for the Government of the Navy, in which he is given the 
power to remit or mitigate, but not to commute, a sentence, as he has done in this 
instance by adding to the punishment given by the court, for the mitigation as re- 
corded, deprives the accused of the $3 per month for necessary prison expenses and 
the S25 allowed him by the court at the time of his discharge. Inasmuch as this ac- 
tion is illegal, the department directs that the accused be given the S3 per month, 
and the S25 at the expiration of his confinement, as provided in the original sen- 
tence." C. M. O. 150, 1897, 3. See also C. M. O. 17, 1910, 8 ; 12 Comp. Dec. 815; 9 
Comp. Dec. 618; 91 S. and A. Memo. 841. 

In recommending the new form of general court-martial sentence set forth in Navy 
Regulations, 1913, R-816 (4) containing the words "and to suffer all the other acces- 
sories of said sentence," the Judge Advocate General stated: The above change is 
recommended for the reason that "in the large number of cases in which sentences 
of dishonorable discharge imposed upon enlisted men are remitted in accordance with 
the present system of administration of justice in the Navy, will obviate the necessity 
of paying such men when restored to duty the sum which the court excepted from 
forfeiture for the specific purpose of being paid them when dishonorably discharged, 
but which, under decisions of the Comptroller of the Treasury, they now receive not- 
withstanding the dishonorable discharge is remitted. (91 S. and A. Memo. 841.) In 
consequence of the comptroller's decisions payments made to prisoners on restoration 
to duty which were not contemplated by the regulations, and which will not be 
required if the above changes are approved, amounted to " many thousands of dollars 
during the last year. File 3980-1049, J. .4. G., Feb. 2, 1915. 

2. Necessary prison expenses— The convening authority, in acting upon the case of a man 

sentenced to confinement and discharge, with the customary exemption from forfei- 
ture of pay of twenty dollars (§20) to be paid him on discharge, remitted the discharge 
and then stated in his action that that part of the sentence referring to the twenty 
dollars to be paid the accused when discharged would be withheld. The department 
held that as such exemption accrued to the benefit of the accused he was entitled to 
it at the end of his confinement and it must be credited to him then, and that the action 
of the convening authority in withholding such from him was in error. C. M. O. 17, 
1910, 8. See also G. C. M. Rec. 28521. 

3. Same — By a display of gross carelessness by the entire personnel of the court a sentence 

was adjudged in which the accused was allowed twenty dollars a month for necessary 
prison expenses. 

The customary exemption is three dollars a month for necessary prison expenses. 
C. M. O. 14, 1913, 5. 

4. Same — The customary exception for prison expenses is three dollars per month and it is 

desirable that all general court-martial prisoners be placed upon an equal basis, as 
far as forfeitures, exemptions, and allowances for prison expenses are concerned, in 
the absence of good reason to the contrary. 

Therefore a court should not include in a sentence an exemption of two instead of 
three dollars for necessary prison expenses. 

The record was returned to the court for a reconsideration of the sentence and 
revised the same to exempt three dollars. C. M. O. 28, 1912, 3; 20, 1913, 3. 



EXEMPTIONS IN" SENTENCES. 231 

5. Same — The sentence of a general court-martial must set forth the manner in which the 

excepted three dollars a month is to be applied. The regulations permitting such 
exception, and the customs of the service, provide that the exception referred to is 
for necessary expenses. C. M. O. 42, 1909, 5. 

6. Paid on discharge— Exemption of $20 is not subject to action of convening or reviewing 

authority, See Exemptions in Sentences, l, 2. 

7. Same — Exemption of $20 may not be withheld if dishonorable discharge is remitted. 

But see Exemptions in Sentences, 1; Sentences, 3. 

8. Same — Sentences of general courts-martial involving forfeiture of pay and discharge 

shall provide that the accused shall be paid $20 when discharged. (R-816 (5).) See 
G. 0.196, Dec. 15, 1875. 

9. Same — In a case where a general court-martial sentence provided for an exemption of 

$30 to be paid on dishonorable discharge the department in part stated : "This sum is 
in excess of that usually provided for as exemption from forfeiture of pay, the cus- 
tomary exemption being but $20. It is considered desirable that naval general court- 
martial prisoners be placed upon the same basis as nearly as practicable, particularly 
so far as concerns the gratuity to be paid when discharged from the service pursuant 
to the sentence." C. M. 0. 1, 1913, 5. See also Exemptions in Sentences, 8. 

EXHIBITS. 

1. Officers' records— As exhibits. C. M. O. 29, 1915, 8. 

2. Record— Properly secured to record. C. M. 0. 16, 1915, 4. 

EXIGENCIES OF THE SERVICE. 

1. Promotion of Marine officers— Delayed by. C. M. O. 29, 1915, 9. 

2. Reconvening of court — Prevented by. See Court, 143, 146. 

EXPATRIATION. See also Words and Phrases. 

1. Evidence as to. See Citizenship, 17, 18; Retired Officers, 31. 

2. Naturalized by foreign state— Act, March 2, 1907, sec. 2 (34 Stat. 1228) provided 

that "any American citizen shall be deemed to have expatriated himself when he has 
been naturalized in any foreign state in conformity with its laws, or when he has 
taken an oath of allegiance to any foreign state." File 26252-104, J. A. G., April 25, 
1916. 

EXPERT WITNESSES. See also Evidence, 12; Hypothetical Questions, 2-4. 

1. Court of inquiry— Fees. See Expert Witnesses, 3, 4, 

2. Drunkenness— A naval surgeon, an expert, stated in effect, that no other drag than 

alcohol would account for the condition of the accused. C. M. O. 36, 1898, 2. See 
also C. M. O. 92, 1905, 3. 

3. Employment of— Authority of department required— The compensation of expert 

testimony is a matter for determination between the witness and the party calling 
him for such testimony. If a naval court-martial or court of inquiry desires to employ 
and subpoena a witness at an expense to the Government, to testily as an expert, the 
authority of the department in each specific instance must first be obtained. (File 
26276-105 (medical expert); file 26251-10626:1, Sec. Navy, May 15, 1915 (handwriting 
expert). See also C. M. O. 12, 1915, p. 13.) C. M. O. 20, 1915, 6. 

4. Fees for— A civilian doctor who had been subpoenaed, as an ordinary witness, to testify 

as to the facts of the question under investigation before a court of inquiry, submitted 
a claim for $100 for expert witness fees for two days attendance. Held, The claimant 
having been summoned as an ordinary witness and not as an expert, and the authority 
of the department not having been obtained to employ the above witness as an expert . 
he is not extitled to fee as an expert but only at the rate of $1.50 per day, the same as 
allowed in the civil courts of the State in which the court of inquiry sat. (Navy 
Regulations, 1913, R-4542; Forms of Procedure, 1910, pp. 67-72.) File 26276-105, 
Sec. Navy, March 16, 1915; C. M. O. 12, 1915, 13. 

5. Handwriting. See G. C. M. Rec. 30684, pp. 264-292; Expert Witnesses, 3. 

6. Medical. See Expert Witnesses, 3. 

7. Same— Medical experts are in practice employed and paid by the accused, and are nol 

summoned by the Government as witnesses for the accused. G. C. M. Roe. 28613; 
29422; Ct. Inq. Rec. 5777. 

8. Officer— In private litigation. See File 1981-00; 6053, Oct. 30, 1906. See also Expert 

Witnesses, 11; Merchant Vessels, 3. 



232 EXPERT WITNESSES. 

9. Ordinary witness— Not to be examined as an expert— A medical officer of the Navy was 

called by the prosecution as an ordinary witness to the facts of the case. Upon cross- 
examination counsel for the accused examined the witness at length as an "expert," 
stating in one part of the cross-examination, "I ask you this as a medical expert." 
(Rec. p. 154.) The mere fact that a uerson who witnessed a certain act, which is a 
violation of the law, happens to be a professional man, does not constitute him an 
expert when he testifies as to his observation of that act. "All persons in the course of 
ordinary life are liable to witness the transactions, or casualties, or crimes of their 
fellowmen ... A surgeon walking down the street and witnessing an accident 
or murder may describe the injuries of the victim more clearly than an ordinary 
beholder. But he is not an expert; he is merely the fortuitous witness of an occurrence 
concerning which he may be made to testify." (Smith v. U. S., 24 Ct. Cls. 216.) 
In this case the irregular examination of the witness having been made by the defense, 
and not being prejudicial to the interests of the accused, did not invalidate the pro- 
ceedings. CM. 0.19, 1915, 5. 

In one case a general court-martial properly sustained an objection to one who was 
called as an ordinary witness, testifying as an expert when he had not qualified as 
such. G. C. M. Rec. 31925, p. 9. 

10. Presence during trial— In a recent general court-martial case a question was raised 

by the request of counsel for the accused that two expert witnesses be allowed to be 
present throughout the trial and hear ail of the testimony adduced. 

In civil courts "the exclusion of witnesses from the court room is a matter for the 
discretion of the court, and not a matter of right." So also "even after the rule or order 
has been granted sequestering the witnesses, it is within the discretion of the trial 
judge to permit some of them to remain and testify if the circumstances require it; 
and so if asked to exclude all of the witnesses it is within his discretion to send out only 
a portion of them. This rule has been applied to the following witnesses: Attorneys, 
court officers, experts, and relatives of the accused." (12 Cyc. 540-547.) 

In naval court-martial procedure, however, it is expressly required that "before 
the charges and specifications are read to the accused, the president of the court shall 
caution all witnesses in the cas6 to withdraw and not to return until they are officially 
called. In the outset of each day's proceedings the warning to withdraw shall be 
repeated to all who are cited as witnesses and may chance to be present," (Xavy Regu- 
lations, 1913, R-776; Forms of Procedure, 1910, pp. 21, 22), and "when the court has 
finished with a witness, he shall be directed to retire, and a minute shall be entered 
on the record to the effect that the witness withdraws to show that two witnesses are 
not in court at the same time." (Navy Regulations, 1913, R-789; Forms of Procedure, 
1910, pp. 26, 36.) 

It will thus be seen that naval procedure differs from that in the civil courts, no 
discretion being vested in a naval court-martial to allow any witnesses to be present; 
the only cases where certain witnesses are allowed to remain, such as the accused, the 
judge advocate, or members of the court, being specifically authorized. Since the 
Navy Regulations are explicit on the subject, and under their provisions expert 
witnesses, the same as all other witnesses, must be excluded unless the regulations 
should be modified or waived by competent authority, the court errs if it permits them 
to remain. In the case in question the court permitted the experts to remain in the 
court room, but such action having been taken on motion of counsel for the accused 
and not being prejudicial to the accused, did not invalidate the proceedings. G. C. M. 
Rec. No. 29422; File 26251-9280; C. M. O. 51, 1914, 8-9. 

11. Private litigation— An officer giving expert testimony in a suit between private parties 

may receive compensation therefor at the usual ra'tes in accordance with his agree- 
ment with the party for whom he appeared. File 1981-1900, J. A. G. See also File 
6053, Oct. 30, 1906; 26276-125, Nov. 1915; Merchant Vessels, 3, 4. 

12. Scope of rules governing expert testimony— A court errs when it allows opinion 

evidence to be given by medical witnesses in answer to hypothetical questions, when 
such witnesses have not qualified as experts and are admittedly not competent to 
give such testimony as to mental diseases. Their testimony can not, therefore, be 
accepted by the court as of any special value in arriving at a conclusion in a case. A 
court also errs in allowing medical witnesses to state directly their opinion as to 
whether or not, from the facts in evidence, the accused in the case is responsible for 
his acts. The law allows medical experts to state their opinion upon an assumed 
state of facts, but it does not permit them to express their opinion upon the specific 
question whether or not upon the evidence, the accused is responsible— that is, guilty 
of the acts charged. This is the very question which the court is convened and sworn 



EXPERT WITNESSES. 233 

to determine upon its own opinion, and to allow a witness to express his opinion on 
this point is an attempted delegation of the court's powers and duties. The witness 
in forming his opinion may accept certain facts as true which the court upon the 
evidence would not regard as proved. Accordingly, the question to an expert is — 
assuming that certain facts exist, state what is your opinion. The court must, there- 
fore, decide for itself upon the question of the accused's guilt, and can not under its 
oath allow certain witnesses to decide the case. C. M. O. 24, 1914, 22. See also C. M. O. 
51, 1914, 6-8; 12, 1917; Accused, 2. 
13. Same — "It does not follow, because a witness is duly qualified and the general sub- 
ject is a proper one, that his judgment can be asked on any branch of the inquiry. 
The precise point of each individual inquiry must be beyond the intelligence of an 
average jury, and 'so far partake of the nature of a science as to require a course of 
previous habit or study in order to an attainment of a knowledge of them.' " (17 
Cyc, 45). Thus, the accused being present in court, where his demeanor and atti- 
tude may be observed by the members, an expert witness is not permitted to testify 
that he has observed the attitude of the accused during the trial and state in his opinion 
it indicated indifference, lack of comprehension, and that the accused was not con- 
siderably affected or worried by the situation, as a normal person would be. This is 
a matter concerning which expert testimony is neither necessary nor proper. " Thus 
it has been held to be unnecessary to rely upon the inferences of witnesses as to a fact 
when all doubt has been or may be set at rest by the use of the senses, either directly 
or through the use of plans or photographs." (17 Cyc, 41). "Where the fact is one 
cognizable by any ordinary observer and the inferences from it may be drawn by the 
jury themselves, before whom it is produced for inspection, no statement by a wit- 
ness as to his inferences are necessary and therefore such evidence is rejected." (17 
Cyc, 41.) 

" The judgment of an expert must be more than a guess. A tribunal which is called 
upon to decide a definite issue of fact by the use of the reasoning faculty can not be 
aided where no mental certainty is shown by a witness. That a judgment is based 
upon conjecture shows that little or no aid can be given the jury on this point by 
witnesses, however skilled, and therefore evidence of it is rejected." (17 Cyc, 226.) 
Thus, whether or not it is possible that certain manifestations of a disease may be 
feigned may be a proper subject of expert testimony. But whether or not, in a par- 
ticular case, such symptoms were or were not feigned by the accused obviously can not 
be testified to by a witness who did not see the accused at the time, and whose opinion 
is necessarily based on conjecture. The medical feature being established, that cer- 
tain symptoms may be feigned under certain circumstances, it is the duty of the 
court to draw its own inference therefrom as to the particular case; little or no aid can 
be given the court by witnesses, however skilled, and testimony of an expert that " I 
do not think it was feigned" is mcompetent. 

"The witness can not be asked to apply the standard of law involved in the case; 
for example whether the person in question had sufficient mental capacity to make 
a will, or to be responsible for his criminal acts by knowing the difference between 
right and wrong, or for his conduct in civil matters, as such a question unnecessarily 
invades the province of the court or jury." (17 Cyc, 238.) "Thus on an issue of 
insanity on an indictment for homicide it is not permissible for defendant to ask a 
medical expert 'when the defendant has been undeniably subject to fits of epilepsy, 
should he not have the benefit of every reasonable doubt that might arise as to his 
sanity.'" (17 Cyc, 238.) 

The question whether or not the accused is responsible for a criminal act com- 
mitted by him, is the very question which the court must determine, and therefore 
the testimony of an expert that "I feel that he is not fully responsible; that he should 
not be held up to the standard to which a well man should be held'' is not competent. 
"A desire to economize time has occasionally induced the court to permit a witness 
examined as an expert to ascertain the facts directly from the evidence. In some 
jurisdictions, but not in all, where the facts are undisputed, an expert who has hoard 
all the testimony may be asked for his judgment 'upon the evidence,' provided that 
he has heard the whole of it, or is familiar with it, or even upon such part of it as is 
material to the inquiry." (17 Cyc, 253-254.) This rule, however, is not applied 
by the Federal courts, (Manufacturers Ace Indemnity Co. v. Dorgan. 58 Fed. Etep. 
945, 22 L. R. A., 620), which should be followed by courts-martial. (Forms of Pro- 
cedure, 1910, p. 135; C. M. O. 21, 1910, p. 13: G. C. M. Rec. No. 24S13) and is similarly 
rejected in many well considered decisions of the State courts. 



234 EXPERT WITNESSES. 

"In some jurisdictions the practice of allowing an expert witness to ascertain the 
facts directly from the evidence, instead of their being embodied in a hypothetical 
question, has been condemned and generally disallowed. And even where the prac- 
tice is allowed it is subject to limitations. There are serious objections to any other 
than the hypothetical question. (1) The course under consideration can riot be 
adopted where the facts are disputed. The witness can not properly be asked for his 
judgment as to disputed matters of fact, to comment on the evidence, or to include his 
'understanding' of the evidence of another witness, or as to the credibility of a wit- 
ness. (2) The practice unnecessarily invades the province of the jur y. (3) It may also 
happen that the witness may not be able to recollect all the testimony, and to allow 
him to proceed upon what he chances to remember deprives all parties of knowledge 
as to the basis of his inference. (4) The same ignorance of the real basis of the inference 
results where the witness has not heard all the material testimony and is asked to 
testify from what he has heard, from what he has seen and heard, or from what he has 
heard and from newspaper reports of the remainder of the evidence; and evidence 
elicited by these forms of question has accordingly been rejected, even where the 
evidence of a witness is incorporated with facts hypothetically stated." (17 Cyc, 
255-258.) C. M. O. 51, 1914. 
14. Weight of. See 7 Op. Atty. Gen. 165. 

EXPIRATION OF LEAVE OF ABSENCE. 

1. Burden — On individual to ascertain time of. C. M. O. 23, 1915. 

EXPLOSION OF BOILERS. C. M. O. 12, 1915, 9; 36, 1915; 37, 1915; 38, 1915. See also 
Emergency, 1, 5; Line of Duty and Misconduct Construed, 6; Orders, 6, 26. 

EXTENSION OF ENLISTMENTS. 

1. Credit for double time. See Enlistments, 13. 

2. Good conduct medals. See Good Conduct Medals. 

3. 1-4893. See Naval Instructions, 1913, 1-4S93. 

4. Marine Corps. File 26507-214:8, J. A. G., Apr. 5, 1915. 

5. Minority— The act of August 22, 1912 (37 Stat., 331), authorizes extension of enlistment 

only in the cases of men enlisted for a term of four years. Therefore, held, that a man 
enlisted for minority can not extend his enlistment under the provisions of said act. 
File 7657-182, J. A. G., Apr. 14, 1913; C. M. O. 29, 1915, 6. See also Enlistments, 12. 

EXTENUATION. 

1. Definition— It may be that matters of legal excuse and those in extenuation have been 

confused. As to this Winthrop says (572): 

"While aU matter of legal excuse will justly affect the findings, it is quite otherwise 
with matter of extenuation. Such a matter can legitimately be considered only in 
connection with the sentence (where the punishment is discretionary) or as a basis 
for a recommendation to clemency; or more properly by the reviewing authority in 
taking action upon the proceedings." 

The defense of the accused was that he was detained by civil authorities, which is 
shown above to be a legal excuse and not a matter of extenuatiom. The latter would 
be some such circumstance as that the accused did not return at the expiration of his 
liberty because of illness in his family, etc. This ; if proved, would be taken into con- 
sideration in adjudging sentence, or in determining upon clemency. C. M. O. 5, 
1912, 12. 

2. Evidence. C. M. O. 17, 1915, 2; 23. 1915, 2. 

3. Same— Accused may introduce after plea of "Guilty." See Accused, 38; Evidence, 

50-53. 

4. Witnesses— Record of proceedings should show witness was called in extenuation if 

such is the case. See Witnesses, 63. 

EXTRA DUTY. 

1. Deck court— May adjudge "extra police duty," not "extra duty." CM. 0.35, 1915, 7. 

EXTRA NUMBERS. 

1. Promotion of. See Additional Numbers. 



FALSEHOOD. 235 

EXTRA POLICE DUTY. 

1. Deck court— May adjudge "extra police duty," not "extra duty." C. M. 0. 35, 1915, 7. 

2. Sentences. C. M. O. 7, 1914, 11; 33, 1914, 4. 

3. Same — Except where the offender is serving on a receiving ship or at a shore station, 

sentences involving extra police duties are undesirable; but this will not be con- 
strued as prohibiting the imposition of this sentence on board ships on which circum- 
stances render it desirable. See C. M. 0. 15, 1910, 12. 

EXTRADITION. See CrviL Authorities, 8, 16, 42; General Order No. 121, Sept. 17, 
1914, 10; Words and Phrases. 

FACTS IN DISPUTE. 

1. Court — Findings of court in general not disturbed. See Criticism of Courts-Martial, 
14. 

FAILING TO OBEY A LAWFUL ORDER OF ARREST. 

1. Officer— Charged with. C. M. O. 82, 1905. 

FAILING TO OBEY THE LAWFUL ORDER OF HIS SUPERIOR OFFICER. 

1. Warrant officer— Charged with. C. M. 0. 18, 1912. 

FALLING AND INJURING KNEE. 
1. Enlisted man. See Line of Duty and Misconduct Construed, 49. 

FALLING FROM MAINMAST. 

1. Enlisted man— Killed. See Line of Duty and Misconduct Construed, 48. 

FALLING INTO DRY DOCK. 

1. Enlisted man— Killed. See Line of Duty and Misconduct Construed, 50. 

FALSE CERTIFICATES. See Certificates, 10. 

FALSE IMPRISONMENT. See also Arrest, 10. 
1. Actions— For false imprisonment. See Counsel, 29, 36; Members of Courts- 
Martial, 7. 

FALSE STATEMENTS. 

1. Evidence to prove— A certain specification alleged that an accused made certain false 

statements before a board of investigation. The accused pleaded not guilty and the 
court found him guilty. No evidence was introduced to show that the accused ever 
made any statements whatever before a board of investigation, or, in fact, ever 
appeared before such board. It appeared to have been assumed that the alleged 
statements were made before a board of investigation and evidence introduced only 
to prove that such presumed statements were false. 

m view of this insufficient evidence the department disapproved the proceedings, 
findings, and sentence. C. M. O. 8, 1911, 8. 

2. Summary court-martial— An enlisted man was tried by summary court-mariial 

for false statements before a board of investigation. C. M. O. 17, 1916, 8-9; File 
26287-3475. See also Knowingly, 2. 

FALSE SWEARING. 

1. Enlisted men— Charged with. C. M. O. 52, 1905, 1; 47, 1910, 5; File 26251-1261S, 

Dec, 1916. 

2. Same— Accused tried for false swearing before a summary court-martial. CM. O. 52, 

1905, 1. 

3. Officer— Charged with. G. C. M. Rec 13670. 

4. Perjury— Since act March 4, 1909 (35 Stat. 1111), false swearing and perjury are synony- 

mous. See Perjury, 7. 

5. Proof of — The record of proceedings of the trial of one man is incompetent as evidence 

against another on trial for false swearing, as it is the constitutional right of the accused 
to be confronted with the witnesses against him. C. M. O. 47, 1910, 5-6. Sec also 
C. M. O. 49, 1910, 10; Evidence, Documentary, 44. 

FALSEHOOD. 

1. Enlisted man— Charged with. C. M. 0. 19, 1911, 3. Seealso G. C. M. Rec, 22866. 

2. Midshipman— Charged with. C. M. O. 36, 1909; 41, 1909. 

3. Motive— The false statement made could have had no other motive than to accomplish 

the result which it actually did accomplish, i. e., to deceive. C. M. O. 163, 1902, 2. 



236 FALSEHOOD. 

4. Nature of— Falsehood "is not a crime in civil life;" File 26251-12159, Sec. Navy. 

5 Officers-Charged with. C. M. 0. 41, 1889; 35, 1892; 11, 1894; 76, 1896; 117, 1902; 163, 

1902-48, 1904; 92, 1903; 71, 1906; 74, 1907; 26, 1906; 48, 1907; 10. 1908; 23, 1909; 53, 191C; 
24 1910; 4, 1911; 15, 1911; 32, 1911; 13, 1912; 7, 1913; 37, 1913; 27, 1914; 1, 1916; G. C. M. 
Rec. 8317; 8720; 11173; 13670; 16960; 25063; C. M. O. 10, 1917. . . 

6 Same— An officer convicted of deliberate falsehood should not De retained in the 

Naval Service. See Adequate Sentences, 11; File 26251-12310. 

7 Pavmaster's clerk— Charged with. C. M. O. 32, 1908. 

8' Warrant officers-Charged with. C. M. O. 48, 1899; 3, 1905; 102, 1905; 26, 1906; 93, 

1906- 48. 1907; 19, 1909; 27, 1909; 34, 1909; 29, 1913. 
9 Warrant officers (commissioned)-Charged with. C. M. 0. 20, 1912; 32, 1912; 21, 1914; 

G.C.M. Rec. 25648. 

FALSIFYING ACCOUNTS. 

1. Paymaster's clerk— Charged with. C. M. O. 28, 1887. 

1 Medical attention— While it may be true that the family of an officer is not directly 

recognized by law in all respects, yet the law does give such recognition in various 
ways. Thus recognition is given, either expressly or impliedly in the follo^ving_: 
\ct Feb. 9, 1889 (25 Stat., 667); act, June 10, 1896 (29 Stat., 361); act, May 13, 1908 (35 
Stat., 128). File 28019-17, J. A. G., Jan. 26, 1912. See also Medical Attendance, 1. 

1. Counsel in court-martial cases— Naval officers prohibited by law from accepting 

compensation. See Counsel, 17. 

2. Expert witness. See Expert Witnesses, 3,4. • 

3 Lloyd's board of survey— Naval officer as a member of. See Merchant Vessels, 4 . 
4. Officers— Prohibited to receive compensation for acting as counsel in court-martial 
proceedings. See Counsel, 17. ~ mTori 17 

5 Retired officer— As counsel for accused— Compensation prohibited. Sec Counsel, 17. 
6*. Witnesses. See Address, 3; Expert Witnesses, 3; Naval Militia, 4o, 46. 

FEINT TO STRIKE. 

1. Assault. See Assault, 12. 

FELONIOUS. 

1. Assault. See Assault, 13,14. 

2. Intent— Charges and specifications must allege an offense. C. M. O. 15, 1895. 

FELONIOUSLY. See also Embezzlement, 14. 

2 Definition— The word ''feloniously" has no special inherent meaning; it is a mere 
technical word used to designate offenses which were declared a felony at common 
law or offenses of considerable gravity which are declared felonies by statute. It is 
descriptive of the offense and if the facts proved establish a felony, then the crime 
w4 c?mmittid feloniously. File 26251-3252 J. A. G-, April 28, 1910, p. *«««§> 
G. C. M. Rec. 28796 (argument of counsel): C. M. O. 42, 1909, 9-10; 30, 1910, 7, 23, 
1911, 2-12; Manslaughter, 13 (p. 353). 
FIANCEE. See Flags, 2. 

^G^neYaltomi-martial-Tried by. C. M. O. 4, 1885; 14, 1885; 36, 1885; 42, 1885; 10, 
1895; 156, 1896. 

FIGHTING WHILE ON DUTY 

1. Enlisted man— Charged with. C. M. O. 6o, 1892. 



FILIPINOS. 237 

FILIPINOS. 

1. Clemency— Recommended because accused was a Filipino. See Clemency, 21. 

2. Naturalization — Of an enlisted man who is a Filipino under act of June 30, 1914 (38 

Stat., 395)— Twenty months' service in the Navy by a native Filipino is not a sufficient 
declaration of intention to become a citizen of the United States. In order for a 
Filipino to become a citizen of the United States on account of service in the Navy 
and without previous declaration of intention it is necessary that he shall have served 
at least one enlistment of not less than four years in the Navy or Marine Corps and 
have received an honorable discharge therefrom, or an ordinary discharge with recom- 
mendation for reenlistment. (See C. M. O. 6, 1915, p. 7; see also, In re Monico Lopez, 
Supreme Court, District of Columbia, Naturalization No. 1340, File 26252-103; 27 Op. 
Atty. Gen. 12.) File 26282-240, J. A. G., Nov. 8, 1915; C. M. O. 42, 1915, 10. See also File 
26252-69, J. A. G., Dec. 4, 1912; 1547-31, J. A. G., Mar. 25, 1908. (In re Alverto, 128 Fed. 
Rep., 688, overruled as far as the naval service is concerned.) 

3. Same — The following unreported opinion was rendered on December 13, 1915, in the 

case of In re Monico Lopez (Naturalization No. 1340), holding that a native Filipino 
is eligible to naturalization. (See File 26252-10 

This is a petition for naturalization filed by Lopez and resisted by the United States. 
The undisputed facts are that Lopez was born May 4, 1878, on the Island of Luzon, 
one of the Philippine Islands. His father and mother were mestizos, born in the 
Philippines. Lopez came to this country in 1904 with former President Taft. He 
is now a messenger in the War Department, having been such since March, 1913. 
He filed his declaration of intention September 4, 1909, and this petition was filed 
more than two years thereafter. His admission to citizenship, as above stated, was 
resisted by the United States, and a brief has been filed in support of such resistance 
by its attorney. The petitioner was not represented by counsel at the hearing, but 
a member of the local bar has filed a brief in behalf of petitioner as amicus curiae. No 
question has been raised as to the petitioner's qualifications for citizenship other than 
as hereinafter stated. 

The application is based upon section 30 of the Naturalization Act of June 29, 1906 
[34 Stat., 596, 606-607], which reads as follows: 

"All the applicable provisions of the naturalization laws of the United States shall 
apply to and be held to authorize the admission to citizenship of all persons not citizens 
who owe permanent allegiance to the United States, and who may become residents 
of any State or organized Territory of the United States, with the following modifica- 
tions: The applicant shall not be required to renounce allegiance to any foreign sov- 
ereignty; he shall make his declaration of intention to become a citizen of the United 
States at least two years prior to his admission; and residence within the jurisdiction 
of the United States, owing such permanent allegiance, shall be regarded as residence 
within the United States within the meaning of the five years' residence clause of the 
existing law." 

The contention of the United States is that petitioner is debarred by section 2169 
Revised Statutes, United States, which provides: 

"The provisions of this Title shall apply to aliens being free white persons, and to 
aliens of African nativity and to persons of African descent." 

It is argued that section 30 of the act of June 29, 1906, and section 2169 Revised Stat- 
utes, United States, must be read together, and that the former section applies only 
to persons who are designated in the latter, viz, "aliens being free white persons and 
to aliens of African nativity," etc. 

The court is unable to agree with the contention of the Government. The language 
of section 30, above quoted, is that "all the applicable provisions of the naturalization 
laws * * * shall apply to and be held to authorize the admission to citizenship of 
all persons not citizens who owe permanent allegiance to the United States and who 
may become residents of any State or organized Territory of the United States." 
But section 2169 is not applicable to petitioner. He is not an alien nor is he of African 
nativity or descent. 

By the treaty with Spain the Philippines were ceded to the United States on April 
11, 1899. By the act of July 1, 1902 (32 Stat., 691), inhabitants of the Philippines who 
were Spanish subjects on April 11, 1899, other than those who had elected to preserve 
their allegiance to Spain, were declared " to be citizens of the Philippine Islands and 
as such entitled to the protection of the United States." Four years later Congress, 
with the act of 1902 before it, making Filipinos local citizens and with the knowledge 
that the islands were being governed by the United States, and that therebv its 



238 FILIPINOS. 

citizens owed allegiance to the United States, enacted section 30, with the evident 
intention of providing means whereby such citizens could become citizens of the 
United States. 

In the case of Fourteen Diamond Rings v. U. S. (183 U. S v 176) the Supreme Court, 
speaking of the Philippines, used this language: " The Philippines thereby ceased, in 
the language of the treaty, i to be Spanish.' Ceasing to be Spanish, they ceased to be 
foreign country. They came under the complete and absolute sovereignty and domin- 
ion of the United States, and so became territory of the United States over which civil 
government could be established. 

" The result was the same, although there was no stipulation that the native inhabit- 
ants should be incorporated into the body politic, and none securing to them the 
right to choose their nationality. Their allegiance became due to the United States and 
they became entitled to its protection." 

This decision was handed down December 2, 1901. Five years later Congress pro- 
vided a means whereby those persons described by the quoted language of the Su- 
preme Court, owing allegiance to the United States, might become citizens thereof. 
To contend that this provision must be read in pari materia with a section relating 
to aliens and persons of African descent is to ignore the evident intent of Congress in 
extending citizenship to a definite and ascertained class of persons who were neither 
aliens nor of African descent. 

I am aware that in other jurisdictions an opposite conclusion has been reached, but 
to my mind the above considerations are compelling, and I will admit the petitioner 
to citizenship. C. M. O. 49, 1915, 23-25. See also Filipinos, 2. 

FINANCIAL IRREGULARITIES. 

1. Chief boatswain, retired— Tried by general court-martial for. C. M. 0. 15, 1915. 

2. Debt. See Debts. 

FINDINGS. 

1. Absence from station and duty without leave— Finding of, on charge of "Deser- 

tion" is acquittal of latter. See Absence from Station and Duty "Without 
Leave, 18; Desertion, 6. 

2. Same— Where accused charged with "Desertion" is found guilty in a less degree than 

charged the proper finding in such a case is: And that the accused, * * * , is of 
the charge, " Guilty in a less degree than charged, guilty of absence from station and 
duty without leave [or absence from station and duty after leave had expired]." 
(Forms of Procedure, 1910, p. 40.) C. M. O. 53, 1914, 5-6. 

3. Accused— In trials ordered by the department, the findings, sentence, and action of 

convening authority will be furnished by the department upon application of the 
accused. See Accused, 36; Record of Proceedings, 32. 

4. Same — Findings not to be furnished accused until the sentence is published. Sec 

Accused, 36; Record of Proceedings, 32. 

Name of accused should be the same in the findings, action of convening authority 
and senior officer present, and charges and specifications and arraignment. File 
26262-2520, Sec. Navy, Mar. 1, 1916. 

5. Acquittals. See Acquittal. 

6. Adhered to— In revision. CM. O. 7, 1911, 14-16; 36, 1915, 1; 36, 1916. 

7. Alterations— Findings shallbe free from all alterations— The j udge advocate in recording 

the findings made an error in writing a word and attempted to correct the mistake 
by writing the word "by" over what he had first written. While this is neither an 
"erasure" nor an "interlineation" it is as objectionable an alteration as either. If 
the judge advocate makes a mistake in recording the finding he should rewrite the 
whole page. (See Forms of Procedure, 1910, p. 40; C. M. O. 55, 1910, p. 8.) C. M. O. 6, 
1916, 3. 

8. Beyond reason and understanding. C. M. O. 49, 1910, 13. 

9. Brackets— In some cases the specifications have been printed in full in the court-martial 

order and certain words found not proved placed in brackets. The findings were then 
recorded: The first specification; "Proved in part; proved except the words [in 
brackets], which words are not proved." C. M. O. 10, 1889, 7; 28, 1891, 2; 56, 1898, 
65-66; 70, 1898, 104-105. 

10. Charges— The findings must specify the numbers of charges. C. M. O. 55, 1910, 9. 

11. Same — No finding on charge— Department disapproved because of this and other 

irregularities. C. M. O. 135-, 1897, 2. See also C. M. O. 33, 1905, 1; File 426-98; Find- 
ings, 38, 64. 



FINDINGS. 239 

12. Same— When the accused has pleaded guilty, the proper finding is, for the specification, 

"proved by plea/' and for the charge "guilty." (Navy Regulations, 1913, R-802 (5); 
Forms of Procedure, 1910, p. 40; C. M. O. 12, 1895, 2; 109, 1897, 2; 55, 1910, p. 9; 14, 1910, 
p. 6; 15, 1910, p. 6; 28, 1910, p. 4; 26, 1912, p. 4; 1, 1913, p. 5; 36, 1914, 7.) C. M. O. 11, 
1916, 3. But see C. M. O. 29, 1916, 1, in which the phraseology used is misleading 
and erroneous. 

13. Clemency— Findings and recommendation should not be inconsistent. See Clem- 

ency, 22; Findings, 53. 

14. Collision— Evidence to prove. See Collision, 8, 9. 

15. Court— After arriving at a finding should call the judge advocate before it to record 

the findings before court closes to deliberate on sentence, because the judge advocate 
will thereby be enabled to advise the court upon any possible irregularity in findings 
before court proceeds to sentence accused. C. M. O. 25, 1914, 6; 6, 1916, 3. See also 
C. M. O. 17, 1910, 10; 23, 1910, 7; 26, 1910, 8; 6, 1916, 3. 

16. Court of inquiry findings — As evidence. See Courts of Inquiry, 18. 

17. "Culpable inefficiency in the performance of duty "—Where an accused is charged 

with "Culpable inefficiency in the performance of duty" and court finds him guilty 
in a less degree than charged, guilty of "Inefficiency in the performance of duty," 
such finding is legal. C. M. O. 4, 1914. See also C. M. O. 21, 1885; 40, 1891; 56, 1898; 
70, 1898; 129, 1898, 6; 89, 1901; 19, 1905, 1; 5, 1906, 1; 19, 1916, 2. 

18. Dates— Substitutions of dates in specifications— It is not necessary that the precise 

date given in a specification be proved, but the court may find that the offense was 
committed on or about said date, or may substitute an entirely different date, pro- 
vided it be within the statutory period of limitations. (12 Cyc. 615.) "Save in those 
cases in which time is of the essence of the offense, the prosecution is not confined in its 
evidence to the precise date laid in the indictment, but may prove the offense to have 
been committed upon any date prior to the finding of the indictment and within 
the period of limitations." (22 Cyc. 451.) 

The department's precedents disclose numerous instances where findings have been 
approved in which courts have substituted definite dates, or "on or about" certain 
dates, for the dates alleged in the specifications. C. M. O. 19, 1915, 5-6. See also 
C. M. O. 129, 1898, 5, 7; 48, 1899, 3; 230, 1902, 3; 3, 1905, 2; Findings, 27, 32, 33. 

"In the fall of the year 1901" found not proved. C. M. O. 230, 1902, 3. 

19. Desertion— Where an accused charged with "Desertion" is found guilty in a less 

degree than charged the proper finding is: And that the accused, * * * , is of 
the charge, "Guilty in a less degree than charged, guilty of absence from station and 
duty without leave [or absence from station and duty after leave had expired]." 
C. M. O. 53, 1914, 5. 

20. Same — Guilty of desertion — Removal of mark of desertion from record. See Mark 

of Desertion. 

21. Disapproval. See Acquittal, 7-10; Findings, 38. 

22. Dissolution — A finding arrived at prior to dissolution of court remains unaffected, and 

established culpability. C. M. O. 4, 1914, 5. 

23. Erasures— Should not be made in the findings. C. M. O. 55, 1910, 8; 28, 1915. 

24. Errors in— Quotation marks should be used correctly. C. M. O. 36, 1914, 6. 

25. Evidence— Not in accord with— Record returned for revision. C. M. O. 36, 1915, 1. 

26. Examining boards. See Naval Examining Boards, 13. 

27. Exceptions and substitutions— Where a court-martial determines that the accused 

is guilty of a specification but not precisely as laid— that is to say, is guilty of a part 
but not of the remainder, or is guilty of the substance of the entire specification but 
not of certain details— it may, and it is its duty, in convicting him thereon, to except 
specifically from the finding of guilty such portions as are not proved, and thus declare 
the exact measure of the criminality deemed to be established . In making exceptions 
as to items in the specifications, not precisely proved, such as amounts, numbers, quan- 
tities, names, dates, places, words spoken, or allegations, the court is authorized to 
go further, and substitute the true facts or details, or proper allegations. A substitu- 
tion, however, like a mere exception, must not so modify the specifications as to 
render it inappropriate to the charge as found. C. M. O. 27, 1896, 2. 

In view of the peculiar authority of a court-martial to make corrections and sub- 
stitutions in its finding, and to convict of a breach of discipline where the proof fails 
to establish the specific act alleged, the charging of the same offense under ditferent 
forms is much less frequently called tor in the military than in the civil practice" 
C. M. O. 19, 1911, 3. See also Charges and Specifications, 61-6S. 

50756°-17 16 



240 FINDINGS. 

23. Same — It is settled law that a naval court-martial is empowered in its findings to 
except certain words in a specification as not proved, to substitute other words which 
are proved, and to find the accused guilty of a lesser offense which is embraced in that 
charged and which is established by the evidence. (Dynes v. Hoover, 20 How. 65; 
Swaim's case, 18 Op. Atty. Gen. 113, 28 Ct. Cls. 173, affirmed 165 U. S. 553.) Ac- 
cordingly an appeal from the court's action in this respect must be denied by the 
Secretary of the Navy, the finding of the court being legally supported by the evidence, 
and it having been decided in habeas corpus proceedings that the court-martial had 
jurisdiction to trv, convict, and sentence the accused for the offenses charged and 
found proved. File 26251-9281:16, Sec. Navy, May 12, 1915; C. M. O. 20, 1915, 6. 

29. Same — The words "intoxicants or drugs" for the words "intoxicating liquor." C. 

M. O. 62, 1904. See also C. M. O. 155, 1897, 2. 
The word "intoxicated" for the word "drunk." C. M. O. 53, 1905. 

30. Same — Place — The following finding has been approved: The first specification of 

the first charge "proved," except the words "Pensacola, Florida," which words are 
not proved, and for which the court substitutes the words, "Warrington, Florida," 
which words are proved. C. M. O. 117, 1902, 6. 

31. Same — "An unknown sum" — The following finding has been approved: The first 

specification of the third charge "proved," except the words "four hundred and 
eighty-three dollars and sixty-five cents," which words are not proved, and the court 
substitutes the words "an unknown sum," which words are proved. C. M. O. 117, 

1902, 6, 7. See also C. M. O. 173, 1902. 

32. Same— Time— "May" for "June"— The second specification of the second charge 

"proved," except the word "June," which word is not proved, and for which excepted 
word the court substitutes the word "May," which word is proved; and except the 
words "giving therefor to the said * * * a worthless check," which words are 
not proved. C. M. . 230, 1902, 3. 

33. Same— "About" such a time, for a definite date— The eighth specification of the second 

charge "proved," except the words "on the fifteenth day of August," which words 
are not proved, and for which excepted words the court substitutes the words "about 
the fifteenth day of August," which words are proved. 

34. Same — The court, in its finding, may not substitute an entirely new and distinct charge 

for the one under which the accused was tried, and where this was done the depart- 
ment held the findings invalid. C. M. O. 37, 1909, 3, 7. 

35. Same — Time — The court found the fifth specification of the fourth charge "not proved." 

This specification alleged that the accused on a certain date did order and cause a 
noncommissioned officer in uniform and on duty to purchase and bring to him intoxi- 
cating liquor for the unlawful purpose of drinking same while on duty. The non- 
commissioned officer in question could not definitely fix the date of this offense, but 
did testify positively that such an occurrence took place on three different occasions, 
two of which were covered by other specifications; but he was not sure of the precise 
date of the third transaction, which was the one covered by this specification. It is 
not necessary that the precise date given in a specification be proved, but the court 
may find that the offense was committed on or about said date, or may substitute 
an entirely different date, provided it be within the statutory period of limitations. 
(12 Cyc. 615.) "Save in those cases in which time is of the essence of the offense, the 
prosecution is not confined in its evidence to the precise date laid in the indictment, 
but may prove the offense to have been committed upon any date prior to the finding 
of the indictment and within the period of limitations." (22 Cyc. 451.) 

The department's precedents disclose numerous instances where findings have been 
approved in which courts have substituted definite dates, or "on or about" certain 
dates, for the dates alleged in the specifications. (C. M. O. 129, 1898, p. 5; 230, 1902, 
p. 3; 3, 1905, p. 2.) [See G. C. M. Eec. 32S51, p. 2.] 

In the present case the evidence mentioned was sufficient to have supported a 
finding of "proved" upon the specification in question, either as it read or with the 
insertion of "on or about" before the date mentioned. C. M. O. 19, 1915, 1, 5-6. 

36. Same— Should not eliminate the essence of the offense, etc. C. M. O. 146, 1900; 41, 

1903, 2; 12, 1904, 3; 29, 1909, 2; 4, 1913, 54; 38, 1916; File 26251-12739. 

37. Same— AVords. C. M. O. 38, 1905, 1-2. 

38. Failure to make— Department disapproved. C. M. O. 33, 1905, 1. 

Where court records a finding on the specification but fails to record a finding 
on the charge, it is directed to reconvene for the purpose of recording a finding upon 
both the charge and specification in the usual and proper manner. File 426-98. See 
also Findings, 11. 



FINDINGS. 241 

39. G. 0. 110— A finding of " Guilty in a less degree than charged, guilty of unauthorized 

absence" is incorrect. C. M. O. 53, 1914, 6. See also Findings, 2, 19. 

40. Gravamen — In finding guilty upon a specification, to except from such finding the 

word or words which express the gravamen of the act as charged and found is contra- 
dictory and irregular. C. M. O. 4, 1913, 54. See also C. M. O. 146, 1900, 2; 41, 1903, 2; 
12, 1904, 3; 29, 1909, 2; Findings, 41; File 26251-12739, Sec. Navy, Jan., 1917. 

41. Same — Court in its finding should not eliminate essential gravamen from specifica- 

tion and then find guilty of charge. See Court, 86. 

42. "Guilty" — When the accused has pleaded "guilty" the proper finding is, for the speci- 

fication, "proved by plea" and for the charge, "guilty." See Findings, 12. 

43. "Guilty but without criminality." See Findings, 69. 

44. "Guilty but without culpability"— A finding of "guilty but without culpability" 

is inconsistent with finding of guilty of a specification which alleges that the act was 
committed "wilfully and deliberately." C. M. O. 7, 1911, 16. 

45. Guilty except to certain words— A finding on a plea of "guilty except to * * * " 

should be recorded as "proved in part by plea." C. M. 0. 14, 1910, 6; 1, 1911, 5. 

46. "Guilty in a less degree than charged." See Guilty in a Less Degree than 

Charged. 

47. "Guilty of specification" — Used in Court-Martial Order 7, 1911, 4, erroneously. See 

also G. C. M. Rec. 23282. 

48. Handwriting — The entire findings must be recorded in the handwriting of the judge 

advocate. This includes everything which properly forms a part of the finding, 
commencing with the words, "The specification of the first charge." 

Forms of Procedure, 1910, page 40, states, "The judge advocate was recalled and 
directed to record the following findings." Everything which follows this statement 
is a part of the finding and therefore must be recorded in the handwriting of the judge 
advocate. C. M. O. 29, 1914, 5; 42, 1914, 4-5; 23, 1916, 2. 

49. Same — If court adheres to former findings in revision such statement should be in 

handwriting of judge advocate. C. M. O. 29, 1914, 5. 

50. Same — The judge advocate shall enter the findings of the court on the record of pro- 

ceedings in his own handwriting. He shall not typewrite the findings. C. M. O. 
155, 1897, 2; 24, 1909, 3; 37, 1909, 4; 42, 1909, 6; 29, 1914, 5; 42, 1914, 4; 17, 1915, 3. 

51. Ignorance of law— An incorrect finding was caused by court's ignorance of law. C. 

M. O. 4, 1913, 13. See also File 26251-12159. 

52. Inconsistent— A finding of "guilty" of fraudulent enlistment, but a light sentence 

imposed because the accused was "mentally unbalanced" whenfraudulently enlisting 
was held by the department to be utterly inconsistent, and therefore disapproved 
the case. C. M..O. 49, 1910, 12-13. 

53. Inconsistent with recommendation to clemency — Where the court found the 

accused guilty of absence without leave and subsequently recommended him to the 
clemency of the convening authority because he was "half-witted and irresponsible" 
the department held that such recommendation was inconsistent with the finding 
of the court, as a man half-witted and irresponsible can hardly be held accountable 
for his acts. C. M. O. 49, 1910, 17. Seealso C. M. O. 21, 1910, 4-6; 30, 1910, 5; 5, 1911, 4. 

54. Interlineations— Findings must be free from interlineations or erasures. C. M. O. 

55, 1910, 8; 28, 1915. See also Findings, 7. 

55. Irregular— Specifications proved but "not guilty, because of mental irresponsibility." 

CM. 0.24, 1914, 3. 

56. Same — Specifications proved but not guilty of the charge. Disapproved. C. M. O. 

59, 1897, 3. Seealso C. M. O. 87, 1897, 2; 12, 1895. 2; 23, 1910, 7; 5, 1911, 7. 

57. Same — Court found the accused "Not guilty" but sentenced him "to be dishonorably 

dismissed." The department stated: "A sentence so evidently illegal, in view of the 
findings, is of course set aside." G. O. 57, June 9, 1865. 

58. Italics — The specifications were printed in full, the words which were found "not 

proved" being italicized. The finding then read: The first specification, "proved, 
except the words (italicized) which words are not proved." C. M. 0. 8, 1886, 32. See 
alsoC. M. 0.4, 1913, 49. 

59. Joinder— Trial in. See Joinder, Trial in. • 

60. Judge advocate— Finding in handwriting of. See Findings, 4S^50. 

61. Same— Court should call judge advocate before it to record findings before deliberat bag 

upon sentence. Sec Findings, 15. 

62. "Justifiable cause"— "and without justifiable cause" not proved, but guiltv of 

charge. C. M. O. 59, 1904, 1-2. See also Assault, 27. 



242 -. FINDINGS. 

63. "Not guilty"— In case the finding is "not guilty" upon any charge, the explicit state- 

ment should immediately follow that the court acquits the accused of such charge. 
C. M. O. 49, 1888, 3; 40, 1891, 2; 60, 1898, 2; 41, 1900; 92, 1903, 3; 49, 1910, 15; 17. 1910, 12; 
21, 1910, 16; 28, 1912, 3; 34, 1913, 6; 29, 1914, 6. See also C. M. O. 26, 1902, where the ex- 
press statement of acquittal was erroneously omitted. See also Findings, 67. 

64. Omission — Of findings on record— Department returned to have findings recorded. 

C. M. O. 5, 1911, 5. See also C. M. 0. 33, 1905, 1; File 26251-12159, Sec. Navy, Oct. 30, 
1916, p. 1; Findings, 11, 38. 

65. Same— Fatal defect not to make a finding where court dissolved. 

66. Same — Voting must be continued until a finding has been reached. It is therefore 

improper to find that "the court can not reach a finding after numerous ballots cast." 
G. C. M. Eec. 23134. See also C. M. 0. 155, 1897, 2. 

67. Same— In case the finding is "not guilty" upon any charge, the explicit statement 

should immediately follow that the court acquits the accused of such charge. 

In a case where this was not done the department stated, "Inasmuch, however, as 
the intention of the court to acquit may be regarded as a necessary inference from 
its findings upon the charge in question," "the omission from the record of the cus- 
tomary statement expressing such intention is not material." C. M. O. 25, 1902. 

68. Same— Finding of "not guilty" fully acquits in law. C. M. O. 5, 1912, 13. 

69 "Proved, but without criminality"— A finding of "proved, but without crimi- 
nality " is not to be encouraged in any case. It is virtually a form of acquittal, being 
a determination that the accused is not guilty in law. It will therefore be more legally 
accurate, as well as more military and more just to the accused, to express and record 
the findings simply as "not guilty." This finding is particularly inappropriate 
upon a charge of desertion in which intent forms an essential ingredient of the offense 
and must be proved. C. M. O. 10, 1911, 5. See also C. M. O. 10, 1913, 3. 

70. "Proved, but without culpability." C. M. O. 30, 1909, 2; 7, 1911, 16. See also 

Findings, 44. 

71. Reconsideration of. See File 26258-302, May 29, 1912. See also 16 Op. Atty. Gen. 104. 

72. Record— Findings on the charges should be entered regularly. CM. O. 55, 1910, 8-9. 

73. Same — When the accused has been tried under one charge with one specification there- 

under, it is improper to record that the court finds the accused of the first charge guilty 
or not guilty. C. M. O. 21, 1910, 11. 

74. Retiring board— Finding can not be changed by act of Congress. 15 Op. J. A. G. 461. 

75. Revision— A finding arrived at after dissolution of court has no legal effect, even though 

attempt is made to reconvene court. C. M. O. 4, 1914. 

76. Same— Original finding should be revoked before new one is adjudged. C. M. O. 19, 

1912, 6. 

77. Same— Accused pleaded guilty to first charge (absense without leave) and not guilty 

to second charge (Conduct to the prejudice of good order and discipline). 

Court found specification of first charge proved and not guilty of the charges; specifi- 
cation of the second charge not proved and not guilty of charge, and acquitted accused 
of both charges. 

In revision the court revoked its former finding upon the specification of the first 
charge and found the specification "proved except that the necessary criminal animus 
nowhere appears in the evidence," and the accused of the first charge not guilty. 
Department disapproved. C. M. O. 6, 1908, 5-6. 

78. Revoking. See Findings, 76. 

79. Setting aside. See Setting Aside. 

80. Single charge— When an accused has been tried under a single charge it is improper 

to record that the court finds the accused of the first charge guilty (or not guilty). 
C. M. O. 21, 1910, 11. 

81. Specifications— Where there is more than one specification there should be a finding 

on each separately. C. M. O. 49, 1910, 14. 

82. Same — Finding on specification should be "not proved" rather than "not guilty." 

C. M. O. 72, 1903. 

83. Same— When the accused has pleaded "guilty," the proper finding for the specification 

is "proved by plea." (Navy Regulations, 1913, R-802 (5); Forms of Procedure, 1910, 
p. 40; Index-Digest, 1914, p. 20.) C. M. O. 11, 1916, 3. See also Findings, 12. 

84. Same — When the accused has pleaded "guilty," the proper finding for the specification 

is "proved by plea." (Navy Regulations, 1913, R-802 (5); Forms of Procedure, 1910, 
p. 40; Index-Digest 1914, p. 20.) C. M. O. 11, 1916, 3. See also Findings, 12. 

85. Same— Irregularity in finding of "not guilty" instead of "not proved" not sufficient 

to invalidate. C. M. O. 72, 1903, 1. 



FINDINGS. 243 

86. Summary courts-martial— If there are two or more specifications, there should 

be a finding on each separately, referring to each of them by number, and the general 
form of findings shall be same as in general courts-martial. C. M. O. 5, 1914, 4. 

Word "findings" not used in actions on summary courts-martial. C. M. O. 
36, 1914, 5. But see General Order No. 110, July 27, 1914, 3 (p. 261). 

87. Surplusage — The words "in consequence of which neglect and failure the * * * 

was stranded" in a specification under a charge of "culpable inefficiency in the per- 
formance of duty" is surplusage, and is not an essential part of the specification 
which will support the charge without such words. C. M. O. 24, 1916, 4. 

88. Typewriting— Findings should not be typewritten. C. M. O. 155, 1897, 2; 17, 1915, 3. 

See also Findings, 48-50,, 60, 61. 

89. Unintelligible — In exceptions and substitutions of words in the findings the court 

should not leave the findings in unintelligible shape or so that they do not allege an 
offense. C. M. O. 29, 1893; 30, 1893; 12, 1904, 3; 47, 1906, 2; 28, 1904. 

90. " Unjustifiable "—Found not proved. See Assault, 27; Findings, 62. 

91. Unreasonable. See Court, 88. 

92. Violation of law— "I believe it would be dangerous for the department to sanction a 

finding by a court-martial which imports that a violation of a distinct provision of 
law (incorporated for the better information of the service in the Navy Regulations, 
article 1473), constitutes neither scandalous conduct nor any other offense whatever." 
File 6465-03, J. A. G., July 22, 1903, p. 5. 

"The department can not sanction a decision which would seem to indicate a de- 
ficiency in the moral sense, as well as in the reasoning powers, of those who pronounced 
it, and the tendency of which would be to encourage a disregard of law." G. O. 22, 
Oct. 17, 1863. 

93. Voting on finding. See Court, 189-191; Criticism of Court- Martial, 35, 36; Find- 

ings, 15; Oaths, 47. 

FINDINGS OF FACT BY COURT OF CLAIMS. C. M. O. 10, 1915, 13. 

FINGER PRINTS. 

1. Evidence, as. See G. C. M. Rec. 28488, pp. 6-16; 29305. See also C. M. O. 37, 1909, 5. 

2. Same^Weight— People v. Jennings, 96 N. E. Rep. 1077 (111.) 

3. Furnished to persons outside of naval service. File 7657-396:1, J. A. G., Sept. 20, 

1916. 

FIRES. 

1. Reimbursement for property— Of enlisted men destroyed in extinguishing a fire on 
board a naval vessel. See File 9464-03. See also File 3674-57; 1 Comp. Dec, 441. 

FIRE EXTINGUISHERS. See C. M. O. 37, 1915, 4. 

FIREARMS. 

1. Care in handling— Commanding officers are directed to bring the above case (man who 

accidentally shot another) to the attention of all under their command, particularly 
emphasizing the importance as thus exemplified of all persons in the service who have 
occasion to handle dangerous weapons exercising the utmost caution to avoid a repe- 
tition of such a deplorable fatality; and that under no circumstances should any person 
carrying a firearm point it at another, however certain he may feel that such firearm 
is not loaded, except when required to do so in the discharge of duty. C. M. O. 33. 
1914, 12. 

2. Sentries, use of, by— Use of firearms by sentries while on their post to defend Govern- 

ment propert}^. See File 7657-125, J. A. G. 

FIREROOMS. See C. M. O. 36, 1915; 37, 1915; 38, 1915. 

FIRST SERGEANT. 

1. General court-martial— Tried by. C. M. O. 48, 1880. 

FIST FIGHT. See C. M. O. 128, 1905, 6. 
FITNESS REPORTS. See Reports on Fitness. 

FLAGS. 

1. Dishonored— Flag dishonored. C. M. O. 14, 1S79, 2. 

2. Draping coffin— The act of June 30, 1914 (38 Stat. 406), authorizing the Secretary of 

the Navy to issue upon requesl to the relatives of the deceased, etc., the Hair used to 
drape thoeoiiin of officers or enlisted men, docs not include the fianose of theaeceased 

File 376S-514, Sec. Navy, June 6, 1916. 



244 FOKNICATION. 

"FLEET CAPTAIN." See Chief of Staff, l. 

FLEET COURT-MARTIAL ORDERS. See Court-Martial Orders, 12, 13. 

FLEET NAVAL RESERVE. 

1. Obligations assumed on enrollment. File 28550-21, J. A. G., Nov. 7, 1916. 

2. Retainer pay. File 28550-20, Sec. Navy, Nov. 1, 1916. See also File 28550-20:1, J. A. G., 

Nov. 10, 1916. 

FLOATING DRY DOCKS. See Dry Docks, 2-4. 

FLOGGING. 

1. Abolished— Flogging was abolished by act of September 28, 1860 (9 Stat. 515). See 
also G. O. of June 5, 1512. 

2. Sentences involving flogging. See Desertion, 119; Excessive Sentences, 3. 

FLOTILLA OF FLEET. , 
1. General courts-martial — Convening of. See Convening Authority, 27. 

FOGGY WEATHER. 

1. Navigation in. C. M. O. 2, 1915; 3, 1915. See also Navigation, 39. 

FOOT CRUSHED. See Line of Duty and Misconduct Construed, 51. 

FORCED DRAFT. 

1. Boilers exploded— Insufficient feed water. C. M. O. 36, 1915; 37, 1915; 38, 1915. 

FORCIBLY. 

1. Defined and discussed. G. C. M. Rec. 21315. 

FOREIGN COUNTRIES. 

1. Bad-conduct discharge. See Bad-Conduct Discharge, 4. 

2. Collisions. See Collision, 2, 4, 10. 

3. Expatriation— Evidence of. See Expatriation; Citizenship, 17, 18. 

4. General courts-martial— Convening of, on foreign territory. C. M. O. 42, 1915, 10. 

See also Jurisdiction, 53. 

5. Officer— Official residence in. See Citizenship, 17, 18; Residence, 2. 

FOREIGN GOVERNMENTS. 

1. Decorations— Acceptance of, by officers and enlisted men. See Decorations. 

FOREIGN LAWS. 

l. Proof of. See Attorney General, 11. 

FOREIGN TERRITORY. 

1. General courts-martial— Convening of, on foreign territory. C. M. O. 42, 1915, 10. 
See also Jurisdiction, 53. 

FOREIGNERS ON WARSHIPS. See Aliens, 5. 

FORFEITURE OF PAY. See Pay. 

FORGERY. 

1. Definition— To constitute forgery there must be a making of a false instrument for the 

purpose of creating another's liability with fraudulent intent to injure him. C. M. O. 
37, 1909, 11. See Criminal Code (35 Stat. J094, 1112) for other definitions. 

2. Enlisted men— Charged with. C. M. O. 37, 1909, 9; G. C. M. Rec. 30447; File 26251- 

10492b. 

FORGING SIGNATURE. 

1. Paymaster's clerk— Forged prisoner's signature. C. M. O. 26, 1915. 

FORMAL ADMISSIONS. See Admissions, 1, 3. 

FORMER JEOPARDY. See Jeopardy, Former; Plea in Bar. 

FORMER JUDGMENT. 

1. When a good bar. See Jeopardy, Former. 

FOR31S OF PROCEDURE, 1910. See Court, 90. 

FORNICATION. 

1. Enlisted man— Tried by general court-martial for, under "Scandalous conduct tending 
to the destruction of good morals." C. M. O. 42, 1915, 3. 



FRAUD. 245 

FOUR MONTHS' GRATUITY PAY. See File 28550-20. 

FRATERNAL ORDERS. 

1. Medical officers— Signing forms for enlisted men to secure sick dues. C. M. O. 29, 
1915, 6. See also Medical Records, 5. 

FRAUD. 

1. A. G. N. 8— Proof of fraud under. See Fraud, 5; Fraudulent Enlistment, 50 (p. 255). 

2. A. G. N. 14— Proof of fraud under. See Fraud, 5; Fraudulent Enlistment, 50 (p. 255). 

3. Attempt to commit fraud. See Fraud, 5. 

4. Classes of. See Fraud, 5. 

5. Definition and discussion— The accused (officer) was charged with "Fraud in vio- 

lation of article 14 of the Articles for the Government of the Navy." The court first 
found the accused guilty of "Irregularity and carelessness in regard to discharge of 
pecuniary obligations" and upon revision guilty of "Conduct unbecoming an officer 
and a gentleman." The convening authority (fleet) approved the proceedings but 
disapproved the finding and sentence for the reason that the sentence was wholly 
inadequate for the offense of "Conduct unbecoming an officer and a gentleman." 

The department, on February 1, 1916, pronounced the proceedings, findings, and 
sentence in this case illegal, and set aside the same with the following remarks: 

The specification in this case is not in due form and technically correct, because it 
quotes therein both a public statute and a Navy regulation. Forms of Procedure, 
1910, p. 137, provides that courts take judicial notice of "public statutes" and "the 
Navy Regulations," and that such "are not required either to be charged or proved." 
Also in the same publication (p. 83) it is provided that "in drawing up the charges 
and specifications, all extraneous matter is to be carefully avoided. " The specification 
in this case is not in accordance with the above provisions of Forms of Procedure and 
is also contrary to the Navy Regulations, 1913, R-712 (3). 

Aside from the irregular form of the specification, it does not allege an offense sup- 
porting the charge under which it appears nor any other charge cognizable by court- 
martial. 

There are two broad classes of fraud, viz, fraud against the United States and fraud 
not against the United States. The first class is punishable under article 14, A. G. N., 
and the other under article 8, A. G. N. 

The accused certainly was not guilty of any fraud against the United States. Hav- 
ing no money to his credit, the pay officer could not have honored the accused's 
draft without himself being guilty of embezzlement and being required to reimburse 
the Government under his bond. Furthermore, even had the accused money on the 
books, the pay officer would not have been authorized to pay such money to another 
on the accused's order, as the law provides that assignment of claims against the United 
States shall be void except under specified conditions (see sec. 3477, R. S.) and in 
certain cases of which this is not one. The "false" and "fraudulent" claims against 
the United States referred to in article 14, A. G. N., evidently contemplate claims 
false or fraudulent in matters of fact and not such as on their lace are null and void 
under the law. 

Furthermore, the specification in this case does not aver that the accused actually 
presented or caused to be presented the above-mentioned order or draft to the Navy- 
pay officer. (See C. M. 0. 160, 1901; 15, 1902.) 

If an offense was committed by the accused in this case, it must therefore have been 
in violation of article 8, A. G. N.; that is, fraud against a private person. To constitute 
such fraud, however, it would be necessary in the present case for the specification 
to have shown affirmatively that the accused had (!) made a false representation of 
some existing or past fact to the person concerned with intent to defraud; (2) that the 
accused knew such representation to be false; (3) that the person concerned had be- 
lieved, and relied upon such false representation; and (4) that said person concerned 
had actually been defrauded by, and parted with something of value in consequence 
of, such false representation. 

If the accused had actually not defrauded the person concerned, the specification 
might have supported a charge of attempt to commit fraud, provided it averred that 
the accused had made the necessary false representation with intent to defraud. 

In the present case, however, the specification merely alleges that the accused 
issued an order or draft on the pay offloer, which order appears on its lace, as sot forth 
in the specification, to be null and void under the law. It does not allege that the 
accused did (his with any Intent to defraud, that he made any false representations 
as to matters of fact, that he received anything of value, nor that lie deceived or 
actually defrauded the aforesaid person concerned or any other person. 



246 FRAUD. 

The specification, therefore, does not in any aspect support the charge under which 
it appears nor any other charge cognizable by court-martial. 

It is proper to add that the uncontradicted evidence in this case established that 
the accused, made no attempt to deceive or defraud anyone; that when he applied 
to the person concerned for a loan he was asked by the latter to sign an order on the 
pay officer for the amount in question; that the accused informed the person con- 
cerned that such an order would be wholly without value, and that said person con- 
cerned was already aware of the fact, and would not have believed the accused had 
he represented that the order would be good; but that the said person concerned 
wanted the order or draft merely for the purpose of using same, if necessary, as a 
means of bringing the matter to the attention of the naval authorities if the accused 
should default in payment. Incidentally, the evidence shows that the accused 
actually repaid the loan, after a brief delay, which was satisfactorily explained. C. 
H. O. 4, 1916. See also Statutes, 10. 

6. Disbursing officer. See Embezzlement, 7; Fraud, 5, 11. 

7. Discharge — Obtained fraudulently by an enlisted man may be set aside. See Dis- 

charge Obtained by Fraud, 2. 

8. Fraud in violation of article 14 ol the Articles for the Government of the 

Navy. See Fraud est Violation of Article 14 of the Articles for the Gov- 
ernment of the Navy. 

9. Fraudulent practices — "Whether or not a person accused has knowledge of fraudulent 

practices is, as a rule, from the necessities of the case largely matter of inference. No 
direct or positive proof in regard to such a matter can be' expected. C. M. O. 129, 
1898 6 

10. Fraudulent intent. C. M. O. 37, 1883, 6. 

11. Pay officer — Fraud is not necessary to constitute a pay officer guilty of embezzlement. 

File 26251-3252, J. A. G., April 26, 1910, page 11. See also Embezzlement, 7. 

12. Paymaster's clerk— Charged with. G. 0. 143, October 28, 1869. 

FRAUD, IN VIOLATION OF ARTICLE 14 OF THE ARTICLES FOR THE 
GOVERNMENT OF THE NAVY. 

1. Officer— Charged with. C. M. O. 27, 1887;. 4, 1916. See also Executing a Fraud 

Against the United States, in Violation of Article 14 of the Articles for 
the Government of the Navy. 

2. Paymaster— Charged with. C. M. O. 27, 1887. 

3. Warrant officer (commissioned)— Charged with. G. C. M. Rec. 25648. 

FRAUDULENT ENLISTMENT. 

1. "Alias"— Used in specifications of "Fraudulent enlistment." See Alias, 3. 

2. Alien— Effect of fraudulent enlistment. G. C. M. Rec. 24710. 

3. Allowances— It is not considered that in proving "Fraudulent enlistment" that 

"allowance" means necessarily a pecuniary allowance, as an allowance of clothing 
or rations is sufficient. C. M. O. 23, 1910, 9. See also C. M. O. 5, 1911, 6. 

4. Same — Not necessary to allege or prove receipt of pay or allowances where the accused 

was a deserter at large at the time of his fraudulent enlistment. The act of March 3, 
1893 (27 Stat., 715), making the receipt of pay or allowances an ingredient of the offense 
relates to fraudulent enlistment by persons not already in the sen-ice. File 26251- 
3570:2. See also C. M. O. 23, 1910, 8-9; Fraudulent Enlistment, 50. 

5. Same — The proof of receipt of pay or allowances is an essential feature necessary to 

substantiate the charge of "Fraudulent enlistment" if the accused is not in naval 
service. C. M. O. 37, 1909, 5, 7; 15, 1910, 8; 23, 1910; 17, 1916, 4. 

The accused was tried by general court-martial, by order of the Commander-in- 
Chief. U. S Atlantic Fleet, and found guilty of "fraudulent enlistment." The 
specification under the charge alleged that the accused fraudulently enlisted on 
September 20, 1915, having procured such enlistment bv concealing from the re- 
cruiting officer that he had, on October 22, 1906, deserted from the U. S. Navy. The 
specification did not allege that the accused had, since said fraudulent enlistment, 
received pav or allowances thereunder. 

The gist of the offense, therefore, with which the accused was charged, was that on 
September 20, 1915, he procured his enlistment by means of false representations. 
In other words, the gravamen of the offense charged was an act committed before the 
accused, on September 20, 1915, had completed a contract— voidable on the part of the 
government by reason of the fraud of the accused, but none the less binding upon the 
accused— whereby he submitted himself to naval jurisdiction. The question now 



FRAUDULENT ENLISTMENT. 247 

arises as to what was the status 01 the accused at the time of making the false repre- 
sentations, which were preliminary to this voidable contract and made before the 
same had become effective. Was he at that time subject to naval jurisdiction, and 
was an offense then committed one of which a naval general court-martial could later 
take cognizance? 

It appears that the accused in this case first enlisted in the Navy on August 30, 
1906, and that this enlistment expired on August 29, 1910. On October 22, 1906, the 
accused deserted from the naval service and remained absent until September 20, 
1915, when he fraudulently enlisted by concealing his desertion. Upon these facts 
it may be seen that while the enlistment of the accused expired on August 29, 1910, 
yet he had never been discharged from the naval service. So the specific question 
to be decided is whether on September 20, 1915, the time of the fraudulent act of the 
accused, he was still in the naval service by virtue of his previous enlistment and the 
fact that he had never been discharged therefrom, or whether he ceased to be in the 
naval service after August 29, 1910, by virtue of the expiration of his contract of en- 
listment on that date. 

In an Opinion of the Attorney General, discussing the limitation of the offense of 
desertion, it is stated: 

"This engagement [contract of enlistment] binds the soldier for a specific term of 
service, beginning at a certain time and running thence continuously day after day 
until the end is -reached, the last day of the term being as much fixed by the con- 
tract as the first. * * * Thus it seems that in our military service the contract of 
enlistmentmust in all cases, even in that of desertion, be regarded as having expired 
when the last day of the term of enlistment therein fixed has elapsed And since the 
obligation to serve depends upon the contract, and necessarily ceases therewith, the 
offense of desertion, on grounds already set forth, must be deemed to terminate at 
the same time. In short, that offense may be viewed as continuing up to the end of 
the term of his engagement, but not beyond." (15 Op. Atty. Gen., 161, 162.) 

While it is to be remarked in connection with the foregoing Opinion of the Attorney 
General that there are legal ways in which an enlisted man may be held to service 
after the expiration of his enlistment, a discussion of the same is not pertinent to the 
present issue for the purpose of which it is sufficient to accept the above opinion as 
controlling on the point that the offense of desertion is completed upon the expiration 
of the offender's enlistment. This, however, does not mean that the offender can no 
longer be punished for desertion— for the statutes specifically provide that he remains 
amenable therefor for a period of two years after the expiration of his enlistment, 
etc. — but merely establishes the date when the offense of desertion has been com- 
pleted. In other words, subsequent to the expiration of his enlistment a deserter 
remains none the less a deserter, but docs not continue in desertion. 

Applying then this conclusion to the facts in the present case, it follows that the 
accused's desertion came to a termination upon the expiration of Ms enlistment on 
August 29, 1910, and upon that date his connection with the naval service came to 
an end, except that a statutory provision permitted of his trial for desertion during 
the period allowed by the statute of limitations. The status of the accused, there- 
fore, on September 20, 1915, when he presented himself for enlistment, was that of a 
civilian — a civilian, it is true, with a mark of desertion against him, but none the less 
a civilian. Having thus established the accused's status, it is now apparent that at 
the time of committing the offense with which he is here charged, that of inducing 
the government by means of fraudulent representations to enter into a contract with 
him, the Navy had no jurisdiction over his person and could, therefore, not assume 
jurisdiction over an offense then committed by the accused. The department ac- 
cordingly held the specification charging the accused with fraudulent enlistment to 
be fatally defective and set aside the findings and sentence thereunder. Q C. M. 
Rec. No 32175. 

In connection with the above case it is to be remarked that the failure to bring the 
accused to justice for fraudulently enlisting was due entirely to faulty pleading A 
statute is in force which was specifically intended to remedy a situation similar to 
that which existed in the present case. The Act of March 3, 1893 (27 Stat., 716), 
provides that: 

"Fraudulent enlistment, and the receipt of any pay or allowance (hereunder, is 
hereby declared an offense against naval discipline and made punishable by general 
court-martial under article 22 of the Articles for the Govemmenl of t he N a\ v . " 

Up to the time of the passage of this Act there were In existence no legal means of 
trying by court-martial for this offense one who was not at the time of fraudulently 
enlisting suhject to naval jurisdiction. Since the passage of the above Act the legal 



248 FRAUDULENT ENLISTMENT. 

means exist for trying such an offender but in order to make use of the same it is 
necessary that they be properly pleaded. 

Now, having in mind the conditions which were to be remedied by the Act of 
March 3, 1893, and considering the language of that statute, it may be seen that the 
gist of the offense of fraudulent enlistment, when committed by persons not in the 
sendee at the time of procuring such enlistment, is not the false representations made 
prior to their acceptance, but is the receipt of pay and allowances under a fraudulent 
enlistment, which act is committed after the offender has completed a contract- 
binding as to him even though voidable by the government— whereby he has sub- 
mitted himself to naval jurisdiction. In order, then, to have preferred a valid speci- 
fication against the accused, it would only have been necessary to have added to the 
specification the further and material allegation that he had received pay and allow- 
ances under his fraudulent enlistment. 

The foregoing, of course, applies only to the cases of persons who are not in the naval 
service at the time of fraudulently enlisting. In the cases of men, who are actually 
in desertion as explained above, the allegation of receipt of pay and allowances is not 
essential to the validity of a specification in support of a charge of fraudulent enlist- 
ment. In the latter cases the offenders are subject to naval jurisdiction at the time 
of making the false representations whereby the fraudulent enlistments are obtained 
and the statutory provision need not be utilized in order to complete the offense. In 
fact, the insertion of the allegation of the receipt of pay and allowances in these cases 
merely makes necessary an attempt to prove more than would otherwise be required 
to sustain the charge. However, inasmuch as in such cases, even in the event of fail- 
ure to prove the receipt of pay and allowances, the charge would be sustained by 
the proof of having procured enlistment by fraudulent representations, while, in the 
cases of persons enlisting fraudulently while not subject to naval jurisdiction, the 
allegation of the receipt of pay and allowances is vital to the specification, it is a good 
rule, in all cases of fraudulent enlistment about which there may be any doubt, to set 
forth this allegation in the specification. (In this connection see C. M. O. 23, 1910, 
7-13). C. M. O. 17, 1916. 5-8. See also Fraudulent Enlistment, 87. 

6. Same — The offense of "Fraudulent enlistment" by persons not in naval service is 

completed by receipt of pay or allowances thereunder. Before such receipt of pay, 
persons so enlisting shall be discharged as undesirable. File 10031-03; 4061-03. 

7. Same — Receipt of either pay or an allowance by a person not in the service when 

fraudulently enlisting completes the offense, and proof of receipt of either under such 
enlistment will support a finding of guilty of that offense. C. M. O. 23, 1910, 9; 5, 
1911, 6. 

8. Same — It is not necessary to prove receipt of pay or an allowance where accused was 

in service (as a deserter) when fraudulently enlisting. C. M. O. 23, 1910, 10. See 
also C. M. 0. 103, 1893, Fraudulent Enlistment, 5. 

9. Army — Men dishonorably discharged from Army enlisting in naval service should 

be dishonorably discharged. See Army, 10. 

10. Same — Fraudulent enlistment in Army discussed. See Fraudulent Enlistment, 

50. 

11. Arraignment— Plea of nolo contendere. See Nolo Contendere. 

12. Burden of proof— On Government. 

13. Cancellation— Of fraudulent enlistment and sentence served under original sentence. 

See C. M. O. 5, 1896; 49, 1905; File 2861-02; 10989-02; 26251-2544:3; Fraudulent En- 
listment, 83. 

14. Charge of— Prior to 1893, those men who were in the sendee (deserters, etc.), and who 

fraudulently enlisted, were tried under the charge of "Conduct to the prejudice of 
good order and discipline" or "Scandalous conduct tending to the destruction of 
good morals." Subsequent to 1893 fraudulent enlistment was charged as "Conduct 
to the prejudice of good order and discipline." Later the charge was changed to 
read "Fraudulent enlistment, in violation of article 22 of the Articles for the Govern- 
ment of the Navy." C. M. O. 23, 1910. See also Fraudulent Enlistment, 50. 

15. Classes— Persons who fraudulently enlist are divided into two general classes: (1) 

Persons in the sendee, as deserters, etc., and (2) persons not in the senice, as those 
who never have enlisted or have been discharged. 

Persons in the sendee when fraudulently enlisting were amenable to trial for that 
offense prior to the Act of July 27, 1892 (27 Stat., 278), and that statute was passed to 
bring the act of fraudulently enlisting by a person not hi the service within the naval 
jurisdiction as fraudulent enlistment by making the receipt of pay or allowances 
under such enlistment the gravamen of the offense. C. M. 0. 23, 1910, 9-13. 



FRAUDULENT ENLISTMENT. 249 

16. Clothing allowance— Receipt of clothing allowance as a proof of "Fraudulent enlist- 

ment." See Fraudulent Enlistment, 3. 

17. Concealing prior discharge obtained under habeas corpus— A minor who pro- 

cures formal release from enlistment under writ of habeas corpus must disclose such 
fact to recruiting officer when applying for enlistment subsequently; otherwise he 
is guilty of "Fraudulent enlistment." C. M. O. 12, 1911, 3-5. 

18. Concealment of previous service— Where a seaman was regularly discharged from 

the service upon expiration of his enlistment and reenlisted under his proper name, 
but denied that he had previous service, the department held that such denial did 
not constitute a fraud inasmuch had it been known to the recruiting officer/it would 
not have militated against the man's reenlistment, and therefore such reenlistment 
would not be fraudulent. Fiie 7906-98. 

19. Conduct to the prejudice of good order and discipline — " Fraudulent enlistment " 

charged under, at one time. See Fraudulent enlistment, 14, 50. 

20. Continuing offense— The offense of fraudulent enlistment is not a continuing offense 

like "Desertion." C. M. O. 31, 1910, 5. See also File 5256-04; 1551-04; C. M. O. 
17, 1916, 6, line 36. 

21. Corpus delicti. See Corpus Delicti, 2. 

22. De facto enlistment — A fraudulent enlistment is still an enlistment, and a man so 

enlisting is de facto in the service and subject to the jurisdiction of a naval court- 
martial. (U. S. v. Reaves, 126 Fed. Rep., 127, file 152-04; Ex parte Rock, 171 Fed. 
Rep., 240; Dillingham v. Booker, 163 Fed. Rep., 696, file 5956-6; In re Scott, 144 Fed. 
Rep., 79, file 2757-4; In re Lessard, 134 Fed. Rep., 305; Solomons. Davenport, 87 Fed. 
Rep., 318; In re Morrissey, 137 U. S., 157; compare Ex Parte Bakley, 148 Fed. Rep., 56, 
affirmed; Dillingham v. Bakley, 152 Fed. Rep., 1022, file 5506-5; and Ex parte Losk, 
145 Fed. Rep., 860, file 2757-8.) 

23. Defense — Accused did not know he was enlisted. The accused was tried by general 

court-martial upon the charge "Fraudulent enlistment." The specification of the 
offense alleged, in substance, that the accused fraudulently enlisted by concealing 
from the recruiting officer the fact that he had been discharged from the service for 
physical disability. 

The court found the specification of the charge "proved without criminality," and 
acquitted him of the charge. 

The department's letter returning the record contained the following remarks: 

The accused was charged with "Fraudulent enlistment," the specification alleging 
that he falsely represented to the recruiting officer that he had never been discharged 
from the service for physical disability, etc. He pleaded not guilty, and the prosecu- 
tion proved a prima facie case against him. 

The accused testified in effect that he did not think he was an enlisted man under 
his enlistment of November 6, 1912, until he "drew clothes and was assigned to some 
duty"; that he thought he was merely "on trial and they were examining" him to 
see if he "was able to do service." Apparently upon the testimony of the accused 
the court found the specification "proved without criminality" and acquitted him 
of the charge. It is to be observed, however, that the accused also stated that he 
changed his surname when he applied for the second enlistment; that he enlisted in 
San Francisco the first time; that he remembered that when he signed his shipping 
articles there was a statement there as to whether he had ever had any previous 
service; that during the eight days he was first in the service the Government paid 
his expenses; that he was given money at the end of that period; that he was given 
a paper with the money, and that the paper plainly showed on its face that it was a 
discharge from the naval service. 

From the man's own testimony ho is guilty of "Fraudulent enlistment." The 
mere fact that he did not think he had enlisted in November does not relieve him 
from the offense, such being ignorance of the law— not of the facts. In the opinion 
of the department the man had no good reason for believing that he had not boon 
enlisted in November. A reading of his testimony leaves no other conclusion. But 
even if the court believes that the accused did not think he had been enlisted, yet. as 
a matter of law, he should be found guilty— as will hereinafter be shown— and an 
adequate sentence should be adjudged. The fact that the man did not think he 
had been enlisted is a matter upon which a recommendation to clemency properly 
may be based. 

As to the enlistment of November 6, 1912, the prosecution proved that the accused 
was regularly enlisted on that date. That enlistment was shown to he legal and 
binding. If the accused believed he had not been enlisted, it is manifest that his 



250 FRAUDULENT ENLISTMENT. 

mistake is a result of ignorance of the law, since in the eyes of the law he was legally 
enlisted. The fact that he did not know that the various acts and steps taken con- 
stituted an enlistment can not avail him as a defense. " It is the settled rule that every- 
one is presumed to know the law and that ignorance thereof furnishes no exemption 
from criminal responsibility. This rule was even applied in the extreme case of 
violation of a statute by a person who was at sea when it was enacted, and when he 
violated it, and who could not have learned of it. Even foreigners coming into a 
country and ignorantly violating its laws are liable, though the act may not be a 
crime m their own country. Nor is positive belief that an act is lawful an excuse." 
(Clark's Cr. L., p. 80, cited by the department with approval in C. M. O. 10, 1911, 7, 
to which remarks the attention of the court is directed. ) As was stated by the depart- 
ment in another case (G. C. M. Rec. 26032), "there is nothing at all unusual in a 
man's willfully and deliberately doing the acts in violation of laws of which he is 
ignorant. The court is not supposed to investigate and determine whether or not 
the accused knew the law, the only question being whether he willfully and deliber- 
ately did the acts with which he is charged. As plainly stated by the Attorney 
General [with reference to statutory offenses] in a recent case, published in Court- 
Martial Order No. 4, 1913, it is the intention to do the act charged and not the intention 
of violating the law which constitutes criminal intent. (A. G. Op., Nov. 12, 1912.) 
It appears that the accused knew what he was doing when he made a false oath to 
the recruiting officer, and he certainly intended to deceive the recruiting officer or he 
would not have taken such a false oath. He does not say he was drunk or insane 
when he enlisted, or that he had a lapse of memory. 

In this case the accused acknowledged having performed in November last the 
acts which in fact constituted a lawful enlistment. He did not contend that he was 
drunk or insane or that he had a lapse of memory at that time. The same is applicable 
to his enlistment in January, 1913. 

Therefore, as a matter of law, the accused should be found guilty of the charge. If 
the facts warrant, the department may remit the entire sentence and restore the 
accused unconditionally to duty. 

The court, in revision, revoked its original findings and acquittal, found the speci- 
fication of the charge proved and the accused guilty of the charge, and adjudged an 
adequate sentence in view thereof. C. M. O. 10, 1913, 3-5. 

24. Same— Drunkenness as a defense. C. M. O. 10, 1913, 4. See also Fraudulent En- 

listment, 23. 

25. Same — Lapse of memory as a defense. C. M. O. 10, 1913, 5. See also Fraudulent 

Enlistment, 23. 

26. Same — Insanity as a defense. C. M. O. 10, 1918, 5. See also Fraudulent Enlist- 

ment, 23. 

27. Same — Tvphoid fever affecting intent— The accused was tried by general court-martial, 

being charged with "Fraudulent enlistment," having deliberately and willfully 
concealed from the recruiting officer the fact that he had been discharged from the 
United States Navy as undesirable while serving under another name. 

In the opinion of the department every allegation contained in the specification 
of the charge was proved by the evidence adduced by the prosecution and the admis- 
sion by counsel for the accused as to the identity of the accused. 

The court found the accused " guilty but without culpability, " presumably in view 
of the testimony brought forward by the defense to show that the accused was in the 
first stages of typhoid fever at the time of his fraudulent enlistment and was therefore 
mentally incapable of entertaining the required criminal intent to deliberately and 
willfully conceal from the recruiting officer the fact that he had been discharged from 
the Navy as undesirable. 

The first witness for the defense testified that when the accused arrived at the navy 
yard, Philadelphia (Oct. IS, 1910), the day after enlisting, that he had a temperature 
of 104 ° F. ; that in the opinion of the witness the accused was on that date in the seventh 
day of the disease. Witness stated that in his opinion the accused, on the day he 
reported, would not "have been in a proper condition to commit legal involvement, 
or to sign papers, or to have been responsible for any legal contract," due to his high 
temperature. This witness's testimony was almost entirelj^ negatived by his answers 
to questions when he testified that the' accused, at the time of enlistment, did not have 
as high a temperature; that he did not see him when he enlisted, and therefore did 
not know whether or not the accused had sufficient temperature to make him irre- 
sponsible at that time. 



FRAUDULENT ENLISTMENT. 251 

The second witness for the defense testified that in his opinion the accused had been 
suffering from typhoid fever "some few days" before coming to the hospital (Oct. 20, 
1910, three days after enlisting); that the accused "had been infected and there were 
some symptoms, I would say, on the 17th," when he enlisted; that he "probably had 
a temperature of a hundred and one or two when he enlisted." Witness, when asked 
by the court if he thought that a man with a temperature of 101 would be likely to 
forget his own identity, or to lose his own identity, answered, "No, sir; I can't say 
that he is." Witness then stated that he had seen cases with a temperature of 99 
' and 99J delirious and had to be restrained physically, but that he did not think any 
doctor would have passed such a subject on an examination for enlistment. 

The department therefore returned the record to the court for a reconsideration of 
its findings and sentence. 

The court in revision respectfully adhered to its former rinding and acquittal. 

In other words, the court puts itself on record as rinding the accused guilty of 
deliberately and willfully concealing from the recruiting officer his prior discharge as 
undesirable from the United States Navy, but that this deliberate and willful act 
by the accused was "without culpability." Such findings are utterly inconsistent. 
From the evidence in the case it is apparent that the accused assumed a false name 
and concealed the fact of a prior undesirable discharge from the service in order to 
procure himself to be accepted for enlistment. 

The department, therefore, disapproved the proceedings, findings, and acquittal 
in this case, and directed that as an entirely separate and independent proceeding, 
the accused be discharged from the service as undesirable as soon as practicable. 
C. M. O. 7, 1911, 14-16. 

28. Same— Statute of limitations. See Fraudulent Enlistment, 87-90. 

29. Definition— A fraudulent enlistment is an enlistment procured by means of a willful 

misrepresentation in regard to a qualification or disqualification for enlistment, or 
by intentional concealment of a disqualification, which has had the effect of causing 
the enlistment of a man not qualified to be enlisted, and who, but for such false 
representation or concealment, would have been rejected. CM. O. 23, 1910, 7-8. 

The gist of the offense of "Fraudulent enlistment" is the concealment of a fact 
knowingly and willfully which, if known to the recruiting officer, would cause the 
rejection of the applicant. C. M. O. 12, 1911, 4. 

The offense of fraudulent enlistment consists or two elements: (1) Entry into the 
service by false pretenses, i. e., misrepresentation or concealment of some matter 
which, if known, would stand as a bar to enlistment; and (2) receipt of pay and allow- 
ances under such enlistment. File 5256-04. See also Fraudulent Enlistment, 
48-50. 

30. Deserter— Void or voidable— The accused deserted from the Navy and fraudulently 

reenlisted, was tried and convicted of "Desertion," the department inadvertently 
failing to charge him with "Fraudulent enlistment" at the same time; the finding 
and sentence for desertion were approved but the period of confinement was mitigated 
and action on the dishonorable discharge held in abeyance with a view to the restora- 
tion of the prisoner to duty. The department held that the fraudulent enlistment 
of the accused "is not void but voidable only and may, if the public interests so in- 
dicate, be treated as valid." File 1676-01. 

31. Same— For complete reference to laws and decisions supporting the conclusion that 

the fraudulent enlistment of a deserter is void ab initio and not merely voidable, 
together with a discussion of the question and rulings of the War Department thereon 
see File 7657-132. See also File 7657-132; 7657-129; G. C. M. Rec. 25190. 

32. Same — The contracts were voidable and not void, and I am of the opinion that, until 

rescinded by the action of the Government, any proper payments made by the dis- 
bursing officer must be considered as legally made and he should be entitled to credit 
for the same. (11 Comp. Dec. 712.) File 4040, April, 1906. 

33. Same— Statute of limitations expired. See File 26262-2585. See also Fraudulent 

Enlistment, 87-90. 

34. Same— Where a man deserted from one branch of the service (Navy) and enlisted in 

another (Marine Corps), it appears to bo the practice to discharge nim dishonorably 
from his second enlistment only, the first being apparently regarded as abrogated, 
so far as the United States is concerned, by desert ion. C. M. O. 5, 1896. 

35. Same— "It seems to me illogical to say that a man can commit a crime, and, when 

arrested, obtain a discharge on the ground that the original enlistment was not proper 
or regular." File 7909-01; 7988-01. Seealso Habeas CoKrvs, io. 



252 FRAUDULENT ENLISTMENT. 

36. Same — Continuous service — A fireman holding a continuous-service certificate who 

deserted and subsequently fraudulently enlisted after having been tried for the offense 
and served his sentence, and his fraudulent enlistment having been canceled is held 
entitled to the benefits of continuous service from the date of his last, or fraudulent, 
enlistment. File 10462-04. 

37. Desertion, proof as part of — " Fraudulent enlistment" constitutes proof of technical 

desertion, but in a case where the accused manifestly lacked the intention to desert 
and enlisted fraudulently as the only means within his knowledge of returning to 
his post, the department held that under the facts of the case he was criminallv guilty 
of only absence from station and duty without leave. C. M. O. 30, 1910, 4-5. 

38. Desertion— Fraudulent enlistment as proof of desertion. C. M. O. 22, 1904, 2; 23, 

1910, 8. See also Fraudulent Enlistment, 50. 

39. Dishonorable discharge— Men concealing dishonorable discharge from the Army 

should be dishonorably discharged from the naval service. See Army, 10. 

40. Same — The department considers that a man who has been found guilty of "Fraudu- 

lent enlistment" is not a suitable person to be retained in the naval service. C. M. O. 
102, 1893, 2. See also Fraudulent Enlistment, 84. 

41. Enlistment ratified— Accused may be tried for fraudulent enlistment even where 

enlistment has been ratified. File 26251-8539; 1, J. A. G., Jan. 21, 1914. See also 
Fraudulent Enlistment, 75, 76. 

42. Evidence of— Corpus delicti. See Corpus Delicti, 2. 

43. Same — In trial for "Fraudulent enlistment." court ruled that statement of age given 

in first sheet of the enlistment record of the accused was not evidence; the depart- 
ment held that the ruling of the court was erroneous. C. M. O. 94, 1905. 

44. Finding— Inconsistent. See Flndlngs, 52. 

45. "Fraudulent enlistment, in violation of article 22 of the Articles for the 

Government of the Navy"— "Fraudulent enlistment." charged as. C. M. O. 
23, 1910. See also Fraudulent Enlistment, 14. 

46. General courts-martial — Fraudulent enlistment and the receipt of any pay or al- 

lowance thereunder are offenses against naval discipline punishable by general court- 
martial. (Act, Mar. 3, 1893, 27 Stat. 715.) (R-3534.) File 26262-2585, J. A. G., 
June 8, 1916; G. C. M. Rec. 32175. See also C. M. O. 17. 1916. 

47. General Order No. 110— Schedule of punishments in General Order No. 110, July 27, 

1914. provided that "Fraudulent enlistment" might be tried by summary courts- 
martial; General Order No. 110 (Revised) does not. See Fraudulent Enlistment, 
91. 

48. Gist— The gist of the offense of "Fraudulent enlistment" is the concealment of a fact 

knowingly and willfully which, if known to the recruiting officer, would cause the 
rejection of the applicant. (C. M. O. 12, 1911, 4.) The gist of the legal offense of 
"Fraudulent enlistment" by a person who is not (as is a deserter) in the naval service 
consists in the receipt of pay or allowance. (C. M. O. 23, 1910.) See also Fraudu- 
lent Enlistment, 5, 29, 50. 

49. Gravamen— In the case of " Fraudulent enlistment " of persons not in the naval sen-ice 

when fraudulently enlisting it is not the misrepresentations but the further and ma- 
terial fact of obtaining pay or allowances, etc., from the Government that constitutes 
the gravamen of the charge. C. M. O. 23, 1910. See also Fraudulent Enlistment, 
5, 50. 

50. Historv, definition, and discussion— A fraudulent enlistment is an enlistment pro- 

cured by means of a willful misrepresentation in regard to a qualification or disquali- 
fication for enlistment, or by intentional concealment of a disqualification, which has 
had the effect of causing the enlistment of a man not qualified to be enlisted, and 
who, but for such false representation or concealment, would have been rejected. 

Persons who enlist fraudulently are divided into two general classes: (1) Persons 
in the service, i. e., deserters, etc., and (2) Persons not in the service, i. e., those who 
have never been enlisted, or those who, having once been enlisted, have been dis- 
charged. 

"With regard to the first of these classes there is an Article of War which, in the Army, 
covers such cases. That article reads as follows: 

"Art. 50. No noncommissioned officer or soldier shall enlist himself in any other 
regiment, troop, or company without a regular discharge from the regiment, troop, or 
companv in which he last served, on penalty of being reputed a deserter, and suffering 
accordingly * * *." . 

Concerning the foregoing, Winthrop says (p. 1009): 

"It is to be construed, however, not as creating an offense distinct from the desertion 
made punishable by article 47, but as indicating a specific form of such offense, or 



FRAUDULENT ENLISTMENT. 253 

rather as declaring that the act of reenlisting under the circumstances described shall 
constitute proof of desertion on the part of the soldier. The object of the provision 
evidently was to preclude the notion that a soldier could be relieved from liability 
as a deserter because on abandoning his regiment he proceeded to reenter the service 
in another, or, in other words, that he could be excused from repudiating his pending 
contract by substituting another in its place." 

It will be seen, therefore, that the act of enlisting in the Army by a deserter who has 
not been regularly discharged was and is an offense under the fiftieth Article of War, 
and when a deserter reenlists under the circumstances contemplated therein he is 
charged with desertion and with violation of the fiftieth article of war. The specifica- 
tion sometimes merely alleged the facts of the reenlistment (Army G. C. M. O. No. 
63, 1879), and sometimes alleged that the offender did "fraudulently enlist," etc. 
(Army G. C. M. O. No. 35, 1878). 

In the act of July 27, 1892 (27 Stat. 278), appears the following: 

"Sec. 3. That fraudulent enlistment, and the receipt of any pay or allowance there- 
under, is hereby declared a military offense and made punishable by court-martial 
under the sixty-second article of war." 

Concerning the foregoing, Winthrop (p. 1140) says: 

"Prior to this legislation fraudulent enlistment was not, in the opinion of the 
author, triable by court-martial, for the reason that the fraudulent representations, 
etc. , in which the offense consisted must have been preliminary and made as an 
inducement to the enlistment, and so before it was consummated, and while there- 
fore the individual was still a civilian and not constitutionally amenable to such trial. " 

It should be observed that Winthrop calls "Fraudulent enlistment" the offense 
of a civilian enlisting by means of misrepresentations, etc., and does not mean the 
offense of a deserter r,eenlisting, the punishment for which was already provided for 
in the fiftieth article of war. He then goes on to say: 

"A statute assuming to make mere fraudulent enlistment so triable would not 
remove the objection, since a statute can not do away with a constitutional inca- 
pacity to confer jurisdiction where the Constitution denies it. But the receipt of 
'pay' or an 'allowance' under an enlistment knowingly fraudulent is an offense, 
because the pay, etc. l is not received until the enlistment has been completed and 
the party is actually in the military service. It is thus the receipt of pay or of an 
allowance (as an allowance of clothing or rations, for it is not considered that 'allow- 
ance' means necessarily pecuniary allowance) which is the gist of the legal offense 
and which in fact constitutes it. " 

That is, the gist of the legal offense of the fraudulent enlistment by misrepresenta- 
tions, etc., of a person who is not, as is a deserter, in the service, consists in the 
receipt of pay or allowance. 

Winthrop continues: 

"A person who has procured himself to be enlisted by means of false representa- 
tions as to his status is not, before having received pay or an allowance, or until he 
receives one or the other, amenable to military trial." 

Concerning the foregoing matters, the following paragraphs are taken from the 
Army Digest, 1901: 

"1417. Before fraudulent enlistment was made a military offense by the act of Julv 
27, 1892 [27 Stat. 278], it was held that persons fraudulently enlisting (except those who 
were undischarged under a former enlistment) could not be tried for the fraudulent 
enlistment as a military offense, because when the act was done they were not in 
the 'land forces.' So in the act of 1892, receipt of pay or allowance was made part of 
the offense. The complete offense therefore is the entry into the service by means 
of a misrepresentation and the receipt of pay or allowance. The procuring of the 
enlistment by means of misrepresentation, etc., and not the misrepresentation itself 
constitutues the offense." 

From the above it will be seen that persons fraudulently enlisting who were undis- 
charged under a former enlistment, i. e., deserters, etc., could, before the legislation 
of 1S92, be tried for the offense of fraudulent enlistment. As already scon, such persons 
were amenable under the fiftieth article of war. The Army Digest. 1901, then in 
the next paragraph continues: 

"1418. The act of enlisting without a discharge from a prior enlistment was pun- 
ishable as fraudulent enlistment before the enactment of the legislation of Julv 27, 
1892 [27 Stat. 278], there being no doubt that the soldier so enlist ins is in the military 
service at the time of such fraudulent enlistment. In such a case it is not necessan 



254 FRAUDULENT ENLISTMENT. 

to allege the receipt of pay or allowances. These words were inserted in the act of 
1892 to meet the cases of men. not bound to service, who fraudulently enlist; * * *. 
In these cases, therefore, an allegation in the specification of receipt of pay or allow- 
ances is essential to properly describe the military offense of fraudulent enlistment 
denned and prohibited by the statute." 

From the foregoing it will be seen that a plain distinction is drawn between the two 
kinds of fraudulent enlistment, i. e. . that of deserters, and that of persons who are not 
in the sen-ice; and that the act of 1892 was passed specially to reach this latter class, 
which was not previously amenable to trial for the offense. And with regard to the 
latter class, it is essential in their cases to allege the receipt of pay and allowances: 
but even before the statute the other class could be tried for the offense and it was not 
then necessary to introduce any similar allegation in the specification, and their 
status is the same as before. 

Winthrop, on page 1141, cites a number of instances of the offense under the statute, 
and an examination of them shows that they are all cases where the offender was not 
in the military service at the time of the fraudulent enlistment. In view of the fact 
that article 50 of the Articles of W ar specially provides for punishing the reenlistment 
of deserters, "Winthrop (p. 1141) says that such an offense (in the Army) is a form of 
desertion, and is erroneously charged as "Fraudulent enlistment," or otherwise than 
as "Desertion." But inasmuch as there is no similar article in the Articles for the 
Government of the Navy, as has been already pointed out, these remarks would not 
apply to the Navy. Furthermore, even had there been no such provision in the 
Articles of War, such offenses would still have been triable under the sixty-second 
article, being one not specially "mentioned in the foregoing articles," etc., and con- 
sisting of "Conduct to the prejudice of good order and military discipline." 

With regard to fraudulent enlistment in the Navy, the act of March 3, 1893 (27 
Stat., 715), contained the following provision: 

"Fraudulent enlistment, and the receipt of any pay or allowance thereunder, is 
hereby declared an offense against naval discipline and made punishable by general 
court-martial under article 22 of the Articles for the Government of the Navy; 
* * *>> 

The foregoing is expressed in almost identicail terms with the similar provision 
relating to the Army in the act of July 27, 1892. (27 Stat. 278.) 

Before 1893, while there were no trials of men not in the service, i. e., deserters, for 
"fraudulent enlistment," yet those who deserted and fraudulently reenlisted were 
tried under the charge of "conduct to the prejudice of good order and discipline;" 
that is, under article 22 of Articles for the Government of the Navy, or in some cases 
the facts of the fraudulent enlistment were alleged in the same specification which 
included the facts of the former desertion. (G. C. M. Eec. 7419, 7424.) Cases have 
also been found where it was charged as "scandalous conduct tending to the destruc- 
tion of good morals." (G. C. M. Rec. 7440, 7445.) 

Subsequent to 1893, the year of the passage of the legislation above quoted, it seems 
to have been the practice, for a time, to charge this offense in all cases as "conduct 
to the prejudice," etc.; samples of specifications and charges involving this offense 
are found in Lauchheimer's Forms of Procedure, 1896, including specifications covering 
cases where the offender was and also where he was not in the service at the time of 
his fraudulent enlistment, and all of those specifications allege the receipt of pay and 
allowances thereunder. 

Later, in Lauchheimer's Forms of Procedure, 1902, the charge was changed to read 
"Fraudulent enlistment, in violation of article 22 of the Articles for the Government 
of the Navy," the specifications including both classes of cases, and all alleging the 
receipt of p'ay and allowances. 

No questions having arisen as to the form of these specifications, they were carried 
into the Forms of Procedure, 1910, using the same phraseology as that previously used. 

In the annual report of the Judge Advocate General, dated October 1, 1893, the first 
report after the enactment of the legislation relating to fraudulent enlistment in the 
Navy, it is stated: 

"Although the above enactment respecting fraudulent enlistment did not go into 
effect until May 2, 1S93, trials and convictions have already been had under its au- 
thority, and it is believed that its effect upon the morale of the service will be excel- 
lent, inasmuch as it provides for the salutary punishment of a class of offenders who, 
not beingregularly enlisted, were formerly beyondthe reach of anaval court, although 
tho offenses committed by them were strictly offenses against naval discipline and 
tended to exercise a demoralizing influence upon the service." 



FRAUDULENT ENLISTMENT. 255 

Here it is seen that the class which the legislation was intended to reach was that 
whichincluded men "not being regularly enlisted." It was not aimed to reach those 
who were already amenable to naval discipline, but, just as in the Army, to secure 
the punishment of those persons who could not previously be tried. 

And again, in a memorandum prepared by the Judge Advocate General for the 
Secretary of the Navy, dated Septemoer 8, 1905, relating to the question whether it 
would not be better to stand upon the man's oath as conclusive evidence of his age 
unless released by a civil court upon habeas corpus proceedings (Press copy book, 
No. 13, Briefs and Opinions, pp. 484, 486), it is said: 

" It is of record, among the traditions of this offense, that prior to 1893 much annoy- 
ance was caused by the enlistment of boys under the statutory age through false 
oaths and fictitious impersonation of parents or guardians, such boys remaining in 
the naval service as long as they chose so do to and then repudiating the contract. 
"Fraudulent enlistment" was not then an offense reachable by naval authority. 
The abuse became of such magnitude, particularly in New York City, that remedy 
was sought through the passage of the following statute, embodied in the act of March 
3, 1893 (27 Stat. 715): * * *" 

In the Navy, then, as in the Army, the statute was passed, not to make the receipt 
of pay or allowance an additional ingredient of the offense, but rather that by the inser- 
tion of that provision there could be reached, in both services, a class of offenders who 
were not before punishable. 

There seems to be no doubt that the act of a deserter in enlisting fraudulently could 
have been punished prior to 1893 under article 22 of the Articles for the Government 
of the Navy; it is not one of the offenses "specified in the foregoing articles," but it is, 
nevertheless, an offense which is prejudicial to naval discipline, and it is, in such a 
case, committed by a person "belonging to the Navy." And this is so, even though 
the offense may not fall within the kinds of " fraud" contemplated in article 8, para- 
graph 1. or under "any other fraud" mentioned in the next to the last paragraph of 
article 14. 

But, on the other hand, before 1893. it was not possible to try a person who was 
notin the service for "fraudulent enlistment," and such offenders went unpunished. 

Subsequent to the legislation of 1893, the status of deserters was unchanged, but 
the other general class was also reached by that enactment, when before they could 
not be, and this was accomplished by making the offense consist of "fraudulent enlist- 
ment, and the receipt of any pay or allowance thereunder." 

From a review of the history of the matter, and considering the mischief that was 
to be cured by the act of March 3, 1893 (27 Stat. 715), it is not believed that it was 
the intention of the law to increase the difficulty of proof of the offense by the further 
allegation of the receipt of pay or allowance in the cases of manifest offenders, i. e., 
those who were already deserters, who proceeded to add a fraudulent enlistment to 
their offense of desertion. Bather, as has been said, it was intended to reach a class 
of offenders who, not beingin the service, were not amenable to trial until suchreceipt 
actually completed the offense, the offense being, as set forth in the statute, " fraudu- 
lent enlistment and the receipt of any pay or allowance thereunder. " In such cases 
it is not the misrepresentations but the further and material fact of obtaining pay, 
etc., from the Government that constitutes the gravamen of the charge. [See File 
26262-2585; J. A. G., June 8, 1916; G. C. M. Rec. 32175; C. M. O. 17, 1916, 4.] 

While, therefore, in the cases of deserters who fraudulently enlist, it is not necessary 
to allege the receipt of pay, etc, as a material element of the specification, it can not 
be harmful, except that it may not be possible to prove it in all cases. But even 
though it be not proved, still without proof of such receipt the charge mav, in those 
cases, be found proved, because the fact of such receipt is not necessary to support 
the charge. C. M. O. 23 1910, 7-13. 

51. Identification of accused.— It is essential to prove that the man at the bar is the same 

as the one charged with having deserted (or been discharged) prior to enlistment. 
Such may be done by proving that the previous enlistment record applied lo the 
accused— that it was the paper containing the history of his naval service— and by 
proving that the same man described therein fraudulently enlisted by concealing his 
prior service. C. M. O. 37, 1909, 5-7; 14, 1910, 15-16. See also C. M. O.' 28, 1910, 8. 

52. Insanity— As a defense to "fraudulent enlistments" must be shown to nave existed 

at the time of the commission of the act. It will also be a good bar to trial if existing 
at the time of the trial. C. M. O. 42, 1909, 12-15. Sic also Fraudulent Enlistment, 
23; Insanity, 8, 32. 

53. Intent. See Fraudulent Enlistment, 23, 27. 

50756°— 17 17 



256 FRAUDULENT ENLISTMENT. 

54. Jurisdiction. See Fraudulent Enlistment, 22, 46, 87-90. 

55. Limitation to punisnment — The accused was found guilty of "fraudulent enlist- 

ment" and sentenced to 18 months' confinement at hard labor and dishonorable dis- 
charge. The record was returned to the court for a reconsideration of the sentence, 
as it was in excess of the limitations prescribed by the President of one-year confine- 
ment and dishonorable discharge for the offense of "fraudulent enlistment." C. M. O. 
28, 1910, 5. 

56. Malum in se — "Fraudulent Enlistment" is malum in se, not merely malum prohib- 

itum. See Fraudulent Enlistment, 61. 

57. Minor— Where a minor during the lifetime of his father had a guardian appointed to 

sign his consent papers upon enlistment, and the father demanded the boy's release, 
on the ground that he enlisted without his consent, it was held that the department 
cannot go behind the action of the court to inquire into the legality of the guardian's 
appointment, and that the enlistment was accordingly valid. File 3956, Jan. 25, 1906. 
See also File 7657-207. 

58. Same — The accused was tried upon the charge of "fraudulent enlistment," the speci- 

fication alleging that at the time of his enlistment he falsely stated that his age was 
over 18 years, whereas in fact it was about 14 years. 

The accused pleaded guilty to the charge and specification. The court did not 
accept this plea, but entered a plea of not guilty and proceeded with the trial. For 
the prosecution there was introduced ample evidence to fully sustain all the allega- 
tions in the specification and the charge, and the accused did not desire to introduce 
any testimony in his defense nor to make any statement. Notwithstanding this, the 
court found the specification not proved and acquitted the accused of the charge. 

It appears from the evidence and from the findings thereon that the ends of justice 
have been defeated in this case: and inasmuch as habeas corpus proceedings have been 
instituted in the civil courts looking to the discharge of the accused because of his being 
under age and that it has been practically decided that at the time of his enlistment 
his a?e was less than IS years, and that he should be discharged from the service, it 
is not considered desirable to return this record for reconsideration of the finding. 
The proceedings, findings, and acquittal were disapproved, and the accused was 
released from arrest and restored to duty. C. M. O. 81, 1905. 

59. Same — Misrepresenting age— In the case of a minor, who was awaiting result of court- 

martial for desertion, whose parents stated that when he enlisted as private in Marine 
Corps he was under leeal age of enlistment; that he misrepresented his age in order to 
secure enlistment: and parents made affidavit that such was the case and produced 
a birth certificate in support of these statements and requested that said enlistment 
be set aside and the man's discharge ordered, the Secretary of the Navy in disap- 
proving the request stated in part: "The Federal courts have repeatedly decided that 
a person who fraudulently enlists in the military service can not set up his fraud as a 
defense when held by court-martial to answer for military offenses; and the discharge 
of the man under such circumstances will not be ordered until he has satisfied the 
sentence of the court-martial." File 26251-9831:1, Sec. Navy, Dec. 26, 1914; C. M. O. 
6, 1915, 14. 

60. Minor, parents divorced— The accused enlisted as an apprentice, third class, with 

consent of father, after his mother had instituted proceedings against said father for 
divorce and care cr custodv of minor child, which enlistment was held to be illegal. 
File 9750-04. See in this connection Fraudulent Enlistment, 59. 

61. Moral turpitude involved— Fraudulent enlistment is an offense involving moral tur- 

pitude, for, as held by the courts, every fraudulent enlistment includes the offense of 
perjury, and that is a crime which has always been visited with most serious con- 
sequences by the civil laws, being recognized as malum in se, and not merely malum 
prohibitum. File 14535-1088. 

62. Nolo contendere. See Nolo Contendere. 

63. Pay — In cases of persons not in naval service when fraudulently enlisting, receipt of pay 

or allowances, etc., must be proved. See Fraudulent Enlistment, 3-8, 50. 

Proceedings, findings, and sentence disapproved in a case where no evidence was 
introduced to prove the receipt of pay or allowances by accused while serving under 
his fraudulent enlistment. C. M. O. 37, 1909, 1. 

64. Same — Pay continues after conviction of fraudulent enlistment unless forfeited in 

whole or'in part bv the sentence. File 26254-279. See also Fraudulent Enlist- 
ment, 66. 

65. Same— Pay actually received by an enlisted man for services during a fraudulent 

enlistment can not be recovered from him. (12 Comp. Dec; 445.) 



FRAUDULENT ENLISTMENT. 257 

66. Pay and allowances— An apprentice seaman discharged for fraudulent enlistment 

is entitled to such pay as he may have received, but all pay and allowances accrued 
and unpaid at the time of the discovery of the fraud shall be checked as forfeited. 
File 2792-01; Comp. Dec; Aug. 12, 1897. Sec also Fraudulent Enlistment. 64. 

67. Pay and. allowances not received— Where the fraudulent character of an enlistment 

is discovered before receipt of pay and allowances thereunder courts-martial have 
no jurisdiction, and the man [not in naval service] should accordingly be "set at 
large" or discharged as undesirable. File 4061-03; 10031-03. 

68. Pecuniary allowance— Receipt of a "pecuniary" not necessary as "allowance" of 

clothing or rations is sufficient. See Fraudulent Enlistment, 3. 

69. Perjury— A private in the Marine Coips who was discharged on habeas corpus, was 

arrested upon the charge of ''perjury" and held for the December term of court. 
(File 5939-1); prosecution was discontinued because of hardship to mother. (File 
5939-6; Habeas Corpus, 2.) Fraudulent enlistment involves perjury. See De- 
serters, 13; Fraudulent Enlistment, 61. 

70. Persons not in naval service— When fraudulently enlisting. See Fraudulent 

Enlistment, 5, 50. 

71. Prima facie case established. C. M. 0. 12, 1911, 4; 10, 1913, 3. See also Fraudulent 

Enlistment, 23, 27, 72. 

72. Prima facie evidence— In trial for fraudulent enlistment the only evidence as to age 

was the sworn statement of the accused in the enlistment record that he was over 21, 
and his unsworn admission (made to a chief yeoman who was directed by the executive 
officer to take the statement of the accused "as to his alleged fraudulent enlistment ") 
that he was 17 years and 11 months. The court found the specification not proved 
and of the charge, not guilty. The department held that the court erred in acquitting 
the accused and disapproved the proceedings, rinding, and acquittal, but restored 
theaccused to duty. O. M. 0. 42, 1905. Scalso Fraudulent Enlistment, 23, 27, 72. 

73. Prior to 1893— Not possible to try a person who was not in the naval service when 

fraudulently enlisting for "fraudulent enlistment" and such offenses went unpun- 
ished. C. M. O. 23, 1910. See also Fraudulent Enlistment, 50. 

74. Proof of— See Fraudulent Enlistment, 5, 50. 

75. Ratification of fraudulent enlistment— The restoration to duty of a man operated as 

a ratification of his fraudulent enlistment— A well-recognized distinction, however, 
exists between the civil aspect of a contract of enlistment and the liability to penalties 
attaching by law upon conviction, where the contract of enlistment is fraudulent. 
(See 26 Op. Atty. Gen., 239, 242; File 20251-1963: 1, J. A. G., Aug. 17, 1910, p 11.) 
Accordingly, the fact that the man was restored to duty could not bar disciplinary 
proceedings for his offense in fraudulently enlisting if the department desires to bring 
him to trial therefor. File 26251-8539:1, J. A. G., Jan. 21 and 24, 1914. See also Fraud- 
ulent Enlistment, 41, 76; Pardons, 29. 

76. Same— Accused enlisted as a landsman; discharged for inaptitude; fraudulently en- 

listed as an apprentice seaman; tried by summary court-martial and convicted but 
not discharged. In view of the above, by retaining accused in the service after his 
conviction by summary court-martial, the Government acknowledged and accepted 
his second enlistment as a valid enlistment, and the accused is serving his second 
enlistment within the meaning of the Act of Mar. 3, 1915 (38 Stat. 940). File 26837-7, 
Sec. Navy, Jan. 15, 1916. See also Fraudulent Enlistment, 91. 

77. Ration allowance — Sufficient. See Fraudulent Enlistment, 3. 

78. Recruiting officer must explain law— By General Order No. 410, April 12, ISO". 

the act of March 3, 1893 (27 Stat. 715), making punishable fraudulent enlistment must 
be read and explained to each candidate for enlistment by the recruiting officer, who 
must satisfy himself that the candidate understands the provisions of the law. (G. O. 
410, 1893.) 

Section 11 of Instructions for Recruiting Officers of the United States Navy provides 
that "each recruit * * * shall be informed that if he has had previous service 
the fact will be known as soon as the papers in his case reach the Navy Department 
and that he will be tried by general court-martial for fraudulent enlistment * * * . 
The recruit will also be informed that men who have been discharged for * * * 
disability or other reasons are not necessarily forever barred from reentering the service, 
but that an official request to be permitted to reenlist * * * will receive con- 
sideration" and that "if it is deemed advisable to reenlist him it will be authorized.'' 
Article 756, (3) United States Navy Regulations, provides that "no one who has 
already been in the naval or military service of the United States shall be enlisted 
without showing his discharge therefrom * * * ." C. M. O. 12. 1911, 4. 



258 FRAUDULENT ENLISTMENT. 

79. Reenlistment— Of man guilty of. See Deserters, 13, 14. 

80. Restoration to duty. See Fraudulent Enlistment, 75. 

81. Reviewing authority— Stated "aside from the rule universally applicable to criminal 

prosecutions, that the accused is entitled to the benefit of a doubt, the natural heed- 
lessness of young men desiring to enlist in dealing with the questions of their age is a 
matter which must necessarily, in some degree, influence the reviewing authoritv." 
C. M. O. 76, 1899. 

82. "Scandalous conduct tending to the destruction of good morals"— At one 

time "fraududlent enlistment" charged as. See Fraudulent Enlistment, 14. 

83. Sentence — Where enlistments in both Navy and Marine Corps, the following form will 

be used: 

"The court therefore sentences the said , ordinary seaman, United States 

Navy, alias , private, United States Marine Corps, 1o be confined in such place 

as the convening authority may designate for a period of (— ) years and 

( — ) months; then to be dishonorably discharged from the Cnited States naval service; 
to perform hard labor during said confinement and, after his accrued pay and allow- 
ances shall have discharged his indebtedness to the United States at the date of 
approval of this sentence, to forfeit all pay and allowances that may become due 
him except the sum of three dollars (S3) per month during said confinement for 
necessary prison expenses and a further sum of twenty dollars (S20) to be paid him 
when discharged from the service pursuant to this sentence." C. M. O. 25, 1914, 6: 
29, 1914, 7. C. M. O. 49, 1910, 12; 16, 1913, 4, overruled. Note: See R-816 as amended. 
See also C. M. O. 47, 1901, 2; Sentences, 49. 

84. Same — Should include dishonorable discharge — For several years it has been the 

almost invariable rule for general courts-martial to include dishon»rable discharge 
in the sentence of an accused convicted of "Fraudulent enlistment." In view of this 
fact the department considers that a departure from this long established custom is, 
in effect, the granting of clemency, a function that is denied a court-martial by law. 
C. M. O. 14, 1910, 7; 17, 1910, 7; 22, 1913, 4. See also C. M. O. 102, 1893; Armt, 10; 
Fraudulent Enlistment, 40. 

85. Same — The dishonorable discharge adjudged on conviction of " Fraudulent enlistment " 

should read from the "United States Naval Service" if enlistments in both Navy 
and Marine Corps, and loss of both pav and allowances should be adjudged. C. M. O. 
55, 1910, 6-7; 15, 1910, 8; 5, 1912, 14; 25, 1914, 6; 29, 1914, 7. C. M. O. 16, 1913, 4, over- 
ruled. See also Fraudulent Enlistment, 83. 

86. Same — Men who conceal a dishonorable discharge from Army should be discharged. 

See Arm y, 10. 

87. Statute of Limitations — The receipt of pay and allowances is not in itself an offense 

but becomes so only in consequences of ''Fraudulent enlistment," and where the 
"Fraudulent enlistment" was committed more than two years since, it is barred 
from prosecution. File 5256-04. 

88. Same— The specification under a charge of "Fraudulent enlistment" preferred by a 

fleet convening authority alleged that the accused enlisted on September 20, 1915, 
procuring such enlistment by concealing from the recruiting officer that "he had on 
or about the twenty-second day of October, nineteen hundred and six, deserted from 
the United State Navy" but did not allege that the accused had since received pay 
or allowances under this fraudulent enlistment. The accused in this case was first 
enlisted on August 30, 1906, for four years until August 29, 1910. This enlistment, 
therefore, had expired five years before the alleged fraudulent enlistment and, more- 
over, the statute of limitations could be pleaded by him in defense of his desertion 
of October 22, 1906. In view of the fact of the expiration of his former enlistment, and 
of the fact that he is no longer amenable to trial for " Desertion," it was necessary to 
allege the receipt of pay or allowances in order to constitute the offense of "Fraudu- 
lent enlistment " in this case. Therefore, the specification is fatally defective, and 
accordinely the findings and sentence were set aside. File 26262-2585, J. A. G., 
June 8, 1916, approved bv Sec. Navy, June 30, 1916; G. M. C. Rec. 32175. See also C. 
M. O. 17, 1916; 31, 1910, 5; Fraudulent Enlistment, 5. 

59. Same— The continued receipt of pay and allowances under "Fraudulent enlistment" 
does not bring such act within the rule respecting a continuing offense. The offense 
is completed by the receipt of any pay and allowances, from which time the Statute 
of Limitations commences to run. File 1551-04. 

90. Same— It is not the policy of the department to try a man for "Fraudulent enlistment" 
unless the prosecution is prepared to prove that he was not amenable to justice within 
a period of two years after commission of that offense, by reason of having absented 
himself or some "other manifest impediment. C. M. O. 31, 1910, 5. 



FRAUDULENT ENLISTMENT 259 

91. Summary court-martial— Accused should not be tried by summary court-martial 

for "Fraudulent enlistment." See File 2G524-123. (G. O. 110, p. 5, overruled.) 
But see File 26837-7, Sec. Navy, Jan. 15, 1916; Fraudulent Enlistment, 76. 

92. Voidable, not void— A fraudulent enlistment is not void but merely voidable. (In 

re Morrissey, 137 U. S. 157; In re Grimley, 137 IT. S. 147.) File 26837-7, Sec. Navy, 
Jan. 15, 1916. See also Fraudulent Enlistment, 22. 

93. Same— An enlistment fraud ulently made may be voidable, but it is not necessarily void 

until so pronounced by competent authority. (In re Morrissey, 137 U. S. 157.) C. M. 
O. 102, 1893, 2. See also Fraudulent Enlistment, 22. 

94. Waiver of— If the department waives fraudulent enlistment upon knowledge, such 

enlistment becomes legal, and man is entitled to pay, etc. 14 Comp. Dec. 267. 

95. Same— Fraudulent enlistment is voidable and may be avoided only by the Govern- 

ment by any act clearly expressing such intention to avoid. Until such act a person 
fraudulently enlisting may be held. File 10031-03. 

"FREEZE." See C. M. O. 41, 1915, 6. 

FUGITIVE FROM JUSTICE. 

1. Discharged as undesirable— And delivered to civil authorities. See Civil Authori- 

ties, 12; Convicts, 2. 

2. Enlisted, not to be. File 26524-207, J. A. G., Nov. 20, 1915, Nov. 22, 1915. 

3. Warned by recruiting officers — Many fugitives from justice who endeavor to find 

asylum in the Navy, would not enlist if they were sure of detection. Accordingly 
suggested that in the instructions for recruiting officers, directions be given that all 
applicants for enlistment be emphatically informed of the department's policy, and 
further that if their purpose in enlisting is to attempt to evade the consequences 
of some crime or other misconduct for which they are answerable to the civil authori- 
ties, they will promptly be surrendered to the proper civil authorities for trial, and 
that their enlistment in the Navy will not afford them any protection or exemption 
from prosecution, but on the contrary the department will assist in their identifica- 
tion and immediate surrender to the proper civil authorities for trial. 

FULL POWER TRIAL. 

1. Boilers— Exploded. C. M. O. 36, 1915; 37, 1915; 38, 1915. 

FULLY ACQUIT. See Acquittal, 15. 

FUNERAL EXPENSES. 
1. Enlisted man— Payment of by family. See Death Gratuity, 21. 

FURLOUGH. 

1. Enlisted men — Duty to notify commanding officer of change of address. See Address, 2. 

2. Officer— May be placed on furlough by Secretary of the Navy (R. S. 1442) — Officer would 

receive half pay (R. S. 1557). C. M. O. 49, 1915, 27. See also Officers, 106. 

3. Without pay— The Supreme Court has held that an officer who may be dismissed 

absolutely, may be furloughed without pay, which is the effect of a partial dismissal, 
and in some cases is in favor of the officer' who might otherwise be removed. (U. S. 
v. Murray, 100 U. S. 536. See also 11 Compt. Dec. 560). File 27231-47, J. A. G., Aug. 
20, 1915. « 

4. Same— Enlisted men of Marine Corps— Act of Aug. 29, 1916 (39 Stat. 580) applies to 

Marine Corps. File 7657-402. 

GAMBLING. 

1. Enlisted man— Charged with. C. M. O. 6, 1915, 3. 

2. With human lives— And Government property. C. M. O. 37, 1915, 8. 

GARRISON. 

1. Confinement— To limits of garrison. See Confinement. 8, 15, 19; Restriction. 

GAS BUOY. 

1. Navigation— Aid to. C. M. O. 2, 1915; 3, 1915. 

GENDARMERIE OF HAITI. 

1. Officers of the United States — Are not prohibited from rendering a friendly sen- ice 
to Haiti, such as assisting to organize a gendarmerie. See Officers of the United 
States, 1. 



260 GENERAL ORDER NO. 110. 

GENERAL COURTS-MARTIAL. See Court. 

GENERAL COURTS-MARTIAL OF A STATE. 

1. Officers and enlisted men of naval service — Appearing as witnesses before. See 

General Order No. 121, Sept. 17, 1914, 23. 

GENERAL EFFICIENCY. 

1. Candidate — For promotion in Marine Corps. See Promotion, 72. 

GENERAL ISSUE. See Arraignment, 7; Words and Phrases. 
GENERAL INTENT. See Assault, 15; Intent, 49. 

GENERAL OF THE ARMY. 

1. Retirement of— Laws relating to. 14 J. A. G. 287. 

GENERAL ORDERS. 

1. Army— A general order of Headquarters of the Department of California, U. S. Army, 

is such a document as may properly be admitted in evidence for certain purposes. 
See Army, 14. 

2. Evidence, as. See Army, 14; General Orders, 1. 

3. Legality of provisions and requirements in— Should the legality of a General Order 

issued by the Secretary of the Navy be raised by the defense, for violation of which he 
is on trial, the court, if in doubt, should submit, it to the department for decision it 
being a question of law. [Navy Regulations, 1913, R-850.] But it is to be presumed 
that the legality of any order issued as above would be fully inquired into by the de- 
partment before the issuance thereof. File 28019-25, Mar. 29, 1912. 

4. No. 77. See General Order No. 77, February 25, 1914. 

5. No. 100. See General Order No. 100, June 5, 1914. 

6. No. 110. See General Order No. 110, July 27, 1914. 

7. No. 121. See General Order No. 121, September 17, 1914. 

8. No. 150. See General Order No. 150, June 14, 1915. 

GENERAL ORDER NO. 77, FEBRUARY 25,1914. 

1. Naval Militia— This general order is merely a publication of the act of February 16, 1914 
(38 Stat. 283), "to promote theemciencv of the Naval Militia and, for other purposes." 
C. M. O. 49, 1915, 17; File26251-109G8:6,*Sec. Navy, Nov. 6, 1915; G. C. M.Rec. 31331. 

GENERAL ORDER NO. 100, JUNE 15, 1914. 

1. Construed— Diseases contracted during unauthorized absence from station are not 
necessarily due to misconduct, notwithstanding that unauthorized absence is of itself 
ordinarily an act of misconduct. In such cases it remains to be determined whether 
the unauthorized absence from station was the natural and proximate cause of the 
disease and if so, whether it is on account of such disease the absence from duty is 
occasioned. File 7657-284, Sec. Naw, Mar. 19, 1915; C. M. O. 27, 1915, 8. See also 
File 7657-394:3, Sec. Navy, October, 1916; Enlistments, 11; Marine Corps, 30. 

GENERAL ORDER NO. 110, JULY 27, 1914. See also General Order No. 110 
(Revised July, 1916). 

1. Amendment to page 9 , par. 9. C M. O. 36, 1914, 3, 4. 

2. Bad-conduct discharge — Attention is called to the fact that the requirements of 

Navy Regulations, 1913, R-622 (7), must be carried out, even when the convening 
authority remits that part of a summary court-martial sentence involving bad-conduct 
discharge on condition that the accused maintain a record satisfactory to his com- 
manding officer during a specified time, as authorized by General Order No. 110. 
"In every case where a sentence involving bad-conduct discharge has been imposed, 
it shall be the duty of the officer ordering the court, before acting vpon the proceedings, 
to spread upon the record a brief synopsis of the service of the person tried and of the 
offenses committed by him during his current enlistment." (Navy Regulation^, 
1913, R-622 (7); Forms of Procedure, 1910, p. 164: C. M. O. 1, 1914, p. 4.) C. M. O. 
36, 1914, 4. See also Bad-Conduct Discharge, 10. 

3. Convening authority, form of action for— The following forms of action will be used 

by the convening authority in cases intended to be governed by article 4893, Naval 
Instructions, 1913 ; or General Order No. 110: 

If the sentence involves only loss of pav, the convening authority will use the form 
of approval given in article 4893 (1), Naval Instructions, 1913. 



GENERAL ORDER NO. 110. 261 

If the sentence involves loss of pay and discharge, the convening authority will use 
the following form of approval: 

"The proceedings (findings) and sentence in the foregoing case of * * * are ap- 
proved. That portion of the sentence which involves * * * discharge is remitted, 
on condition that the accused maintain a record satisfactory to his commanding 
officer, during a period of * * * months. That portion of the sentence involving 
loss of pay is remitted subject to the conditions specified in article 4893, Naval 
Instructions. 1913." 

(The word "findings " is used only in actions on records of general courts-martial.) 

The senior officer present, in approving summary court-martial cases acted upon 
in accordance with these instructions, will use the form given in Forms of Procedure, 
p. 165, var. 1. C. M. O. 36, 1914, 4-5. 

General, Order No. 110 was revised in July, 1916, and promulgated the following 
forms of action for convening authorities as substitutes for those published above: 

When sentences adjudged by deck courts and courts-martial are to be executed in 
accordance with the provisions of this order, the following action will be placed on 
the record by the reviewing or convening authority: 

Deck courts. — "The sentence is approved and the accused informed this day; that 
portion of the sentence involving loss of pay is remitted subject to the conditions 
specified in article 4893, Naval Instructions, 1913." 

Summary courts-martial.— -"The proceedings, findings, and sentence in the fore- 
going case of * * * are approved. The bad conduct discharge is remitted on 
condition that * * * during a period of * * * months conducts himself in 
such a manner as in the opinion of his commanding officer warrants his further re- 
tention in the service; otherwise the bad conduct discharge will be executed at the 
discretion of his commanding officer at any time during said period. The loss of 
pay (is reduced to the loss of * * * and as thus reduced) is remitted subject to 
the conditions specified in article 4893, Naval Instructions, 1913." 

General courts-martial.— The proceedings, findings, and sentence in the foregoing 
case of * * * are approved; that portion of the sentence which involves confine- 
ment is remitted; the dishonorable discharge is remitted on condition that * * * 
during a period of * * * conducts himself in such a manner as in the opinion of 
his commanding officer warrants his further retention in the service; otherwise lie 
will be dishonorably discharged at the discretion of his commanding officer at any time 
during said period. Thelossofpay (and allowances) (is reduced to the loss of * * * 
and as thus reduced) is remitted subject to the conditions specified in article 4893 
Naval Instructions, 1913." (G. O. 110, Revised, pp. 4-5.) 

4. Same— It was noted that the action of the convening authority as convening authority 

remitted the loss of pay in accordance with 1-4893, and that his action as senior officer 
present stated that the portion of the sentence involving bad-conduct discharge 
will be carried into effect at any time within six months at the discretion of the com- 
manding officer of the vessel or station to which he may be attached: thus it will be 
seen that the discharge adjudged was not remitted and from the action taken it will 
be carried into effect at some time within the period of six months, unless the sentence 
is further mitigated by the Secretary of the Navy. 

If it was the intention of the convening officer and senior officer present to remit 
the bad-conduct discharge on condition that the accused maintain a record satis- 
factory to his commanding officer, during a period of six months, as provided in 
General Order No. 110, the form of action prescribed on pages 4 and 5, Court-Martial 
Order No. 36, 1914, should have been used. File 262S7-2869. Sec. Navy. Mar. 18, 1915; 
26287-2892, Sec. Navy, Mar. 23, 1915; C. M. 0. 12, 1915,5. But see G. 0. 110 (Revised ). 

5. Same— A man sentenced to bad-conduct discharge by summary court-martial should 

not be placed on probation for a period extending over the expiration of his enlist ment . 
(C. M. 0. 12, 1915, p. 6.) Should a man have less than six months yet to serve on his 
current enlistment it would be appropriate for the convening authority to word his 
action as follows: " The proceedings, findings, and sentence in the foregoing ease of 
* * * are approved. That portion of the sentence which involves Dad-conduct 
discharge is remitted, on condition that the accused maintain a record satisfactory 
to his commanding oilicer, during the balance of his current enlistment which 
expires * * *". (Sec for example, S. C. M. Rec. No. 03970 of Victor R, Hagberg, 
private, U. S. M. C, tried Mav 25, 1915, at Marine Barracks, Navy Yard, Boston, 
Mass., File 26287-3110; S. 0. M. Rec. No. 05186 of William L. McE'nen. private, I . 
S. M. C. tried June 4 ,1915, at Marine Barracks, Navy Yard, Philadelphia, Pa., File 
26287-3000) CM. O. 22, 1S15, 5. 



262 GENERAL ORDER NO. 110. 

6. Discharge by purchase. See General Order No. 110, July 27, 1914, 18. 

7. Expiration of enlistment of accused during probationary period— Accused 

was sentenced to loss of pay and bad-conduct discharge by summary court-martial. 
Convening authority remitted so much of the sentence as related to loss of pay in 
accordance with 1-4893 and remitted the bad-conduct discharge conditionally under 
the provisions of General Order No. 110. It appeared from the enlistment record of 
the accused that his enlistment would expire before the probationary period ended. 
Held, Accused should receive a discharge upon expiration of enlistment commensurate 
with his conduct during the total period of enlistment and the character of his dis- 
charge will determine the amount of pay which he will receive from pay deducted 
during his enlistment as provided in 1-4893. 

Convening authorities in their actions on court-martial records should not place 
the accused on probation for periods extending beyond the expiration of enlistments. 
Where this is done, however, this action should not operate agairist the probationer, 
and if his conduct is satisfactory up to date of expiration of enlistment, he should 
receive the same benefits as though his probationarv period had been completed and 
his discharge effected thereafter. File 26287-2864, Sec. Navy, Mar. 19, 1915; C. M. O. 
12, 1915, 6. 

8. Finding— A finding of " Guilty in a less degree than charged, guilty of unauthorized 

absence" is incorrect. C. M. O. 53, 1914, 6. See also Findings, 2. 

9. Forms of action — For convening authorities. See General Order No. 110, July 27, 

1914, 3-5, 7. 

10. Fraudulent enlistment— Schedule of punishments provides that "Fraudulent 

enlistment" may be tried by summary court-martial, but General Order No. 110 
(Revised) does not. See Fraudulent Enlistment, 47, 91. 

11. Liberty, extension of— In this connection the attention of the court is invited to the 

following provisions of General Order No. 110, July 27, 1914, which are enforced in the 
cases of enlisted men: If no reply is received they are not justified in assuming that their 
requests are granted merely because they teleeraphed or wrote, but, on the contrary, 
the failure to receive positive permission to remain absent renders it essential for them 
to return at once. (G. O. 110, p. 7.) C. M. O. 25, 1915, 2. 

12. Liberty or leave of absence— In ascertaining the date of expiration of liberty or leave 

granted to officers and enlisted men, the burden of ascertaining the proper time of 
the expiration of such leave is entirely upon the individual and the department has 
from time to time directed that enlisted men be carefully instructed that absence 
through failure to ascertain the time of expiration of liberty was wholly at the risk 
and peril of the individual. In a recent order (G. O. 110, July 27, 1914) the following 
instructions were issued upon this subject. "They [enlisted men] will be fully 
instructed that they are responsible for informing themselves as to the expiration 
of liberty, boat hours, train schedules, etc., and that ignorance thereof is not an 
excuse." C. M. O. 23, 1915, 1-2. 

13. Marine— Reenlisted. See General Order No. 110, July 27, 1914, 19. 

14. Officers— Principles of General Order No. 110 generally applicable to. C. M. O. 23, 

1915, 2; 25, 1915, 2. See also General Order No. 110, July 27, 1914, 11, 12. 

15. Probationary feature — The probationary feature of General Order No. 110 is superior 

to the former detention system, both on account of the increased number of men 
reclaimed thereby, the vast reduction in expenditures necessary for the operation 
of the system, and for the humanitarian reason that it avoids unnecessary imprison- 
ment of young men guilty of military offenses. File 5087-126, J. A. G., Sept. 30, 1915. 

16. Probationary period— Offense during— When a man is serving a sentence which has 

been mitigated pursuant to the provisions of General Order No. 110 or article 4893, 
Naval Instructions, 1913, and commits an offense of such a serious nature that his 
commanding officer decides should receive a more severe punishment than would be 
the case if he merely terminated the probation and allowed the unexecuted part of 
the sentence to be carried into effect, he may either order the man's trial by summary 
court-martial or recommend his trial by general court-martial. In cases of this char- 
acter the department desires that the man be required to serve both the original sen- 
tence and such additional sentence as may be imposed for the last offense. 

Where the man's original sentence included discharge from the service which had 
been conditionally remitted subject to the provisions of General Order No. 110, if he 
is subsequently sentenced to a period of confinement and discharge for an offense com- 
mitted while on probation, the Secretary of the Navy will remit the former discharge 
in order to permit execution of the last sentence. C. M. O. 42, 1914, 5. But see Gen- 
eral Order No. 110 (Revised, Julv, 1916). 



GENERAL ORDER NO. 110. 263 

17. Same — Discharge during probationary period See Geneeal Order No. 110, July 

27, 1914, 7. 

18. Purchase— An enlisted man of the Navy was sentenced by summary court-martial to 

loss of pay and bad-conduct discharge, the former being remitted subject to the condi- 
tions specified in article 4893, Naval Instructions, 1913, and the latter remitted on 
condition that the accused maintain a record satisfactory to his commanding officer 
during a specified period. [Provisions of G-. O. 110.] The accused successfully com- 
pleted his probationary period, at which time the entire loss of pay adjudged in his 
case had been "deducted." Thereafter he received a discharge by "purchase." 
Held, That the total amount of pay which had been "deducted" during his enlist- 
ment, in accordance with the provisions of 1-4893, should be "credited" to the ac- 
cused's account at date of discharge; and since, as he was discharged at his own 
request and for his own convenience, he received an "ordinary discharge" (Navy 
Regulations, 1913, R-3608 (b),) his account should be "checked" one-half the total 
amount of pay "deducted" and conditionally remitted in accordance with 1-4893. 
File 26287-2971, Sec. Navy, May 27, 1915; C. M. O. 20, 1915, 5. 

19. Reenlisted marine— Held, That, in view of the unambiguous phraseology of General 

Order 110 in which the words "reenlisted marine" are used, a soldier who enlists in 
the Marine Corps for the first time, upon the termination of an enlistment in the Army, 
is not to be regarded as a reenlisted man within the purview of said General Order. 
File 26516-144:53, Sec. Navy, Apr. 12, 1916; C. M. O. 13, 1916, 8. 

20. Schedule of punishments— Should be followed where practicable— The accused 

was tried by general court-martial by order of the Secretary of the Navy, at the navy 
yard, New York, on the charge of "Desertion." He pleaded "not guilty." The 
court found him "Guilty in a less degree than charged, guilty of absence from station 
and duty after leave had expired," and sentenced him to be confined at hard labor for 
three months, with corresponding forfeiture of pay and allowances, and to be dis- 
charged with a bad-conduct discharge. 

In view of the fact that this man remained in unauthorized absence for nineteen 
days, the department does not consider the sentence adjudged in his case an adequate 
or appropriate one. General Order No. 110 prescribes a schediile of punishments 
for desertion and unauthorized absence, and in that schedule it is expressly suggested 
that in all cases of unauthorized absence over ten days a dishonorable discharge 
should be a portion of the sentence adjudged. 

However, two of the six members of the court before which this man was tried have 
been relieved from dirty on the court and the original membership reduced below 
the five required to be present in acting upon a case in revision, and it is, therefore, 
impracticable to return the record to the court for a reconsideration of its sentence. 
File 26251-11322, Sec. Navy, Dec. 16, 1915; G. C. M. Rec. No. 31401; C. M. O. 49, 1915, 
11-12. See also Bad-Conduct Discharge, 6. 

21. Senior officer present— The senior officer present, in approving summary court- 

martial cases acted upon in accordance with the instructions contained in paragraph 
3 of this heading, will use the form given in Forms of Procedure, p. 165, var.l. C. M. O. 
36, 1914, 5. 

22. Sentence — It frequently happens that the court directs that a sentence be recorded 

in the following form: 

"To be discharged from the service with a bad-conduct discharge, the bad-conduct 
discharge to be executed at the discretion o f the commanding officer at any time within 
six months." 

The court should not prescribe in its sentence how or when such sentence shall be 
executed. Such matters are properly within the province of the convening authorit y . 

The following form of sentence should be used by the court in recording sentences 
adjudged in accordance with the provisions of General Order No. 110: 

"To lose pay amounting to ( ) dollars and ■ ( ) cents, and to be 

discharged from the naval service with a bad-conduct (dishonorable) discharge." 

(Dishonorable discharge, ofcourse, can only be adjudged by a general court-martial.) 
C. M. O. 36, 1914, 4. 

23. Same— The accused was tried by general court-martial, pleaded "guilty " to "deser- 

tion" and was sentenced to lose pay amounting to ninety dollars and to be dishonor- 
ably discharged from the United States Marine Corps. 

The accused in this case remained in desertion until apprehended by the civil 
authorities and forcibly returned to the naval authorities. 

General Order No. 110, page 5, provides that if a man in desertion is delivered by 
the civil authorities he should be tried by general court-martial and sentenced to im- 



264 GENERAL ORDER NO. 110. 

prisonment in a naval prison. This general order also provides that nothing in the 
schedule will be construed to limit the discretionary power vested in general courts- 
martial, summary courts-martial, and deck courts, but that it should be followed to 
secure uniformity (page 2). 

It therefore follows that this sentence is both inadequate and contrary to the system 
of discipline which it was intended to establish in General Order No. 110. 

General Order No. 110 is based on the theory that men who surrender desire to re- 
establish themselves in the naval service and earn an honorable discharge; in the case 
of a man who is apprehended, no such presumption exists, and as this man was forcibly 
returned to naval jurisdiction there is no good reason to believe that he will not desert 
again upon the first opportunity. For this reason General Order No. 110 provides that 
in such cases the man should receive a sentence which includes confinement. The 
court in this case having been reconvened to reconsider its sentence revoked its former 
sentence and adjudged one which was adequate, file 26251-10365, Sec. Naw, March 
30, 1915; G. C. M. Rec. No. 30347; C. M. O. 12, 1915, 6-7. See also File 26251-10363. 

GENERAL ORDER NO. 131, SEPTEMBER 17, 1914. 

1. Action where men convicted by civil authorities— In cases in which men delivered 
to the civil authorities for trial are convicted, the commanding officer will make full 
report of the offense and sentence to the Bureau of Navigation or the Commandant 
of the Marine Corps, as the case mav be, with recommendation as to whether the man 
should be discharged as undesirable. (File 1579-03, Feb. 14, 1903, and June 11, 1903.) 

Form of agreement as to expenses. 

The following is suggested as a form of agreement acceptable to the department in 
cases referred to in paragraph 9: 

"In consideration of the delivery of , United 

States Navy (or United States Marine Corps), to , at 

, for trial upon the charge of 

,1 hereby agree, pursuant to the 

authority vested in me as , that said 

will be returned to the naval authorities at the aforesaid place of his delivery without 
expense to the United States immediately upon the completion of his trial upon the 
charge aforesaid in the event that he is acquitted upon said trial, or immediately 
upon satisfying the sentence of the court in the event that he is convicted and a 
sentence imposed, or upon other disposition of his case, provided that the naval 
authorities shall then desire his return." (File 26524-239:3, Sec. Navy, Feb. 26, 1916.) 
See General Order No. 121, paragraphs 11, 12. 

2. Agreement not required of Federal authorities— An agreement as to expenses will 

not be exacted as a condition to the delivery of men to the Federal authorities, either 
in response to writs of habeas corpus, as witnesses, or for trial. However, in such cases 
the expenses will be defrayed as follows: The person who produces a man in a Federal 
court in response to a writ of habeas corpus or as a witness will keep an accurate 
account of expenses, and present same to "the United States marshal for the district 
in which the court is sitting, who is the prcper officer to settle such account, including 
the expenses of the return trip. (File 26251-8684: 2 & 4.) Men desired by the Federal 
authorities for trial will be called for and taken into custody by a United States 
marshal or deputy marshal; in suck case the expense of transporting the man to the 
place of trial will* of course, be defrayed by the marshal. The question whether the 
man in such case may be returned to the "Navy at the expense of the United States 
if not convicted, and if so, what appropriation is available therefor, has not been 
settled. (See 14 Comp. Dec., 824; 87 S. & A. Memo., 713.) See General Order No. 
121. paragraph 13. 

3. Civilian attorney's attention— Invited to. C. M. O. 31, 1915, 6. 

4. Commanding officer must notify department and await instructions— In no 

case will commanding officers of vessels or shore stations of the Navy or Marine Corps 
deliver to the civil authorities, State or Federal, any person in their custody or under 
their control without first communicating with the Secretary of the Navy and await- 
ing his instructions in the premises. The Secretary of the Navy will promptly issue 
the necessary orders in the case or make request upon the. Attorney General, in accord- 
ance with Title VIII of the Revised Statutes of the United States, to furnish such 
legal assistance to the commanding officer concerned as the interests of the United 
States involved in such case may demand. (See par. 7 of G. O. 121.) 



GENERAL ORDER NO. 121. 265 

The words "in no case," as used in the above paragraph, are intended to refer to 
every case in which the civil authorities, Federal or State, request or demand the 
delivery to them of any officer or enlisted man in the Navy or Marine Corps, whether 
for the purpose of determining the legality of his detention by the naval authorities, 
or of trying him for a violation of the Federal or State laws, or of securing the testimony 
of a naval prisoner as a witness in a civil court. The instructions contained in the 
above paragraph accordingly apply to and include all cases in which writs of habeas 
corpus, requisitions of the governor or chief executive of any State, warrants, ad 
testificandum, or other civil process of any kind are served on commanding officers 
of the Navy or Marine Corps, afloat or ashore, for the purpose of securing the delivery 
of any person under their control to such civil authorities. (See par. 10 of G. O. 121.) 

In such cases, occurring outside of the District of Columbia, the report to the Sec- 
retary of the Navy will be telegraphic, to be followed immediately by letter containing 
full statement of the facts. In order to expedite action, the telegraphic report will be 
addressed to the Secretary of the Navy direct, and the first words in the message will 
be "For Judge Advocate General." (C. M. O. 29, 1915, 7; file 26524-183, J. A. G., 
Oct. 14, 1915; 26524-185, Sec. Navy, Oct. 2, 1915.) See General Order No. 121, 
paragraphs 1, 2, 3. 

5. Delivery of men to State authorities for trial— In every case in which the Secretary 

of the Navy authorizes the delivery of any person in the Navy or Marine Corps to 
the civil authorities of a State for trial, the senior officer present will, before making 
such delivery, obtain from the governor or other duly authorized officer of such State 
assurance that the person so delivered will be returned to the naval authorities at the 
place of his delivery without expense to the United States, immedialely upon the 
completion of his trial for the alleged misconduct which occasioned his delivery to 
the civil authorities in the event that he is acquitted upon said trial, or immediately 
upon satisfying the sentence of the court in the event that he is convicted and a sen- 
tence imposed, or upon other disposition of his case, provided that the naval authori- 
ties shall then desire his return. (Instructions of the Secretary of the Navy, Mar. 7, 
1908, file 425-2; Apr. 1, 1908, file 2928-8; June 19, 1912, file 26524-45; Feb. 12, 1914, file 
26524-57; June 26, 1914, file 26524-61; 26524-259:1, Sec. Navy, Apr. 25, 1916. See 
also File 26524-64; 1579-03; G. O., No. 18, U. S. M. C, Mar. 29, 1909.) (See par. 12 of 
G. 0. 121.) 

The instructions contained in paragraphs 1 and 9 of G. O. 121 include cases where 
the delivery of a person in the Navy or Marine Corps attached to a navy yard or station, 
or serving on board a vessel at such yard or station, is demanded by the civil authorities 
of the State in which such navy yard or station is located, although such State has 
expressly retained jurisdiction to serve civil or criminal process within the limits of 
the navy yard or station in question. (File 26524-57, Sec. Navy, Feb. 12, 1914.) 
See General Order No. 121, paragraphs 9, 10. 

6. Exact compliance with directed— The attention of commanding officers is called to 

the requirement of paragraph 3 of General Order No. 121, September 17, 1914, con- 
cerning the "letter containing full statement of the facts " which should immediately 
follow the telegraphic report to the Secretary of the Navy when the delivery of men 
to the civil authorities is requested. Attention is also called to the fact that the first 
words in the telegraphic report should be "For Judge Advocate General." C. M. O. 
29, 1915, 7. See also File 26524-183, J. A. G., Oct. 14, 1915; 26251-9965:21, J. A. 0., 
Oct. 4, 1915. 

7. Expedition— Of cases coming under. File 26524-186, J. A. G., Oct. 21, 1915, Oct. 29, 1915. 

8. Extradition. See General Order No. 121, Sept. 17, 1914, 10. 

9. Forms of agreement. See General Order No. 121, Sept. 17, 1914,1. 

10. Governor's requisition necessary in certain cases— In cases in which the delivery 
of any person in the Navy or Marine Corps for trial is desired by the civil authorities 
of a State, and such person is not attached to or serving at a navy yard or other place 
within the limits of said State, requisition for the delivery of the party must be made 
by the governor or chief executive of such State, addressed to the Secretary of the 
Navy, showing that the party desired is charged with a crime in that State for \vh ich 
he could be extradited under the Constitution of the United Stotes, the enactments 
of Congress, and the laws of the State desiring his delivery. (File 26524-61, June 1. 
1914; 26524-62, June 22, 1914; 26254-237, J. A. G., Apr. 20,* 1916: 26254-260, J. A. O , 
Apr. 25, 1916; 26524-261:1, Sec. Navy, June 5, 1916; 26524-262. J. A. Gh, Apr. 27. 1916; 
26524-144, Sec. Navv, May 11, 1915; 26524-171, Sec. Navy, Aug. 2, 1915; 26524-180, Sec. 
Navy, Sept. 16, 1915; 26524-190, Sec. Navy, Oct. 16, 1915; C/M. O. 35, 1915, 8; 2 Op. 



266 GENERAL ORDER NO. 121. 

Atty. Gen., 10.) Such requisition may be forwarded to the Secretary of the Navy 
by mail for preliminary examination, together with the appointment of the agent of 
the State to whom it is desired that delivery be made. Thereupon, if the papers are 
found to be in due form, the Secretary of the Navy will send the necessary authoriza- 
tion to the designated agent permitting him to take the party into custody upon com- 
pliance with par. 9 oi G.O. 121. (File 26524-64-69-83; 26524-137, Sec. Navy, Apr. 21, 
1915.) See General Order No. 121, paragraph 14. 

11. Habeas corpus proceedings, Federal courts— In this connection there is quoted for 

the information of the service section 756 of the Revised Statutes of the United States, 
which prescribes the- time allowed for making return to writs of habeas corpus issued 
by Federal courts: 

"Any person to whom such writ is directed shall make due return thereof within 
three days thereafter, unless the party be detained beyond the distance of twenty 
miles; and if beyond that distance and not beyond a distance of a hundred miles, 
within ten days; and if beyond the distance of a hundred miles, within twenty days." 

The officer upon whom such a writ of habeas corpus is served can not be required 
to obey same in any shorter period after the service of the writ than that specified 
in the above section of the Revised Statutes, even though the writ should in terms 
require that the person named therein be produced "forthwith," or "immediatelv," 
or at a specified time. (Ex parte Baez, 177 U. S., 389; United States v. Bollmau, 24 
Fed. Cas., 1190.) 

The United States Revised Statutes contain the following further provisions con- 
cerning habeas corpus proceedings instituted in the Federal courts: 

"Sec. 757. The person to whom the writ is directed shall certify to the court or 
justice or judge before whom it is returnable the true cause of the detention of such 
party. 

"Sec. 758. The person making the return shall at the same time bring the body 
of the party before the judge who granted the writ. 

" Sec. 759. When the writ is returned a day shall be set for the hearing of the cause, 
not exceeding five days thereafter, unless the party petitioning requests a longer 
time." 

In accordance with the foregoing sections of the Revised Statutes, should instruc- 
tions for any reason not be received by the commanding officer from the Secretary 
of the Navy by the last day of the period allowed by law for making return to a writ 
of habeas corpus issued by a Federal court, the commanding officer will certify to the 
court or justice or judge before whom the writ is returnable the true cause of the 
detention of the party, if in his custody, and will at the same time bring the body 
of the said party before the judge who granted the writ, and request the court to delay 
the hearing of the cause for the full period of five days allowed by law, so that further 
opportunity may be afforded for the receipt of instructions in the premises from the 
Secretary of the Navy. If the party is not in the custodv of the officer to whom the 
writ is directed, he will so state in his return. (See File 26202-1625, Inc. 1, p. 26.) 
(As to definition of "custody," see Wales v. Whitney, 114 U. S., 564.) See General 
Order No. 121, paragraphs, 4-7. 

12. Habeas corpus proceedings, State courts— State courts have no jurisdiction in 

habeas corpus proceedings to order the discharge of any person held by an officer of 
the Navy or Marine Corps by authority of the United States; however, in the event 
that a writ of habeas corpus should be issued by a State court to a commanding officer 
of the Navy or Marine Corps, afloat or ashore, the Secretary of the Navy will be com- 
municated with immediately in accordance with paragraph 3 of G. O. 121; and 
should instructions not be received - by the commanding officer from the Secretary 
of the Navy by the time specified in the writ, or if no definite time be specified therein, 
within three days after the service of the writ (United States v. Bollman, 24 Fed. Cas., 
1190) the officer upon whom the writ is served will make return thereto in accordance 
with "Forms of Procedure for Courts and Boards in the Navy and Marine Corps" 
(p. 76), without producing the body of the party in court. See General Order 
No. 121, paragraph 8. 

13. Hawaii— The following instructions were issued to the Commandant, Naval Station, 

Hawaii, with regard to General Order No. 121, September 17, 1914: 

"It is directed that the commandant communicate to the Secretary of the Navy 
in advance of the delivery of persons to the civil authorities only in cases where the 
circumstances are such as, in his judgment, make such action desirable." File 26524- 
172, Sec. Navy, Nov. 23, 1915; C. M. O. 42, 1915, 10. 



GENERAL ORDER NO. 121. 267 

14. Leave of absence may be granted to appear for trial — Where a person in the Navy 

or Marine Corps is arrested by the Federal or State authorities for trial and returns 
to his ship or station on bail, the commanding officer may grant him leave of absence 
to appear for trial on the date set upon an official statement by the judge, prosecuting 
attorney, or clerk of the court, reciting the facts, giving the date on which the appear- 
ance of the man is required, and the approximate length of time that should be covered 
by such leave of absence. (File 5322, May 23, 1906; 26524-45, June 19, 1912.) See 
General Order No. 121, paragraph 17. 

15. Naval prisoners as witnesses or parties in civil courts— If the Federal or State 

authorities desire the attendance of a naval prisoner (see par. 15) as a witness in a 
criminal case pending in a civil court, upon the submission of such a request to the 
Secretary of the Navy authority will be given in a proper case for the production of 
the man in court without resort being had to a writ of habeas corpus ad testificandum. 
(File 26251-8684:2, June 10, 1914; 26276-93, May 29, 1914; 26276-40, June 10, 1912; 
26276-33, June 5, 1911; 26276-17, Nov. 10, 19J9; 26251-11233:1, Sec. Navy, Dec. 7, 1915; 
26251-11252:2, Sec. Navy, June 2, 1916; Army Digest, 1912, 221 a.) The department, 
however, will not authorize the attendance of a naval prisoner in a Federal or State 
court, either as a party or as a witness in private litigation pending before such court, 
as in such cases the court may grant a postponement or a continuance of the trial; 
but the department will allow the deposition of such naval prisoner to be taken in 
the case. (File 26251-4913:1, Oct. 12, 1911; 26276-36, Dec. 9, 1911; 26276-121, J. A. G., 
Nov. 19, 1915.) See General Order No. 121, paragraph 16. See also Witnesses, 86. 

16. Naval prisoners wanted by civil authorities for trial — In any case in which the de- 

livery of a person in the Navy or Marine Corps for trial is desired by the civil 
authorities, Federal or State, and such person is a naval prisoner (which includes any 
person serving sentence of court-martial or in custody awaiting trial by court-martial 
or disposition of charges against him), he will not in general be delivered to the Federal 
or State authorities until he has served the sentence of the naval court-martial, or his 
case has otherwise been finally disposed of by the naval authorities. (File 26251-164, 
June 4 and Oct. 19, 1908; 26251-5546:1, Jan. 20, 1912; 26251-6397:1, Aug. 28, 1912; 
26524-217, J. A. G., Dec. 28, 1915; letter of Attorney General to Secretary of the Navy, 
Apr. 16, 1907, No. 99858, N. D. file 6674-33; 7538-142, Dec. 3, 1913; 7538-74, Oct. 4, 1909; 
Army Digest, 1912, 135 D.) However, if the Federal or State authorities desire the 
surrender of the party under the above circumstances upon a serious charge, such as 
felonious homicide, and the interests of justice would be better subserved by his 
delivery, the Secretary of the Navy may, in his discretion, discharge the man from 
naval custody and from his contract of enlistment and deliver him to the civil 
authorities for trial. (File 26251-2798:2, Jan. 24, 1910; Army Digest, 1912, 135 D, 136.) 
See General Order No. 121, paragraph 15. 

In general, a prisoner serving sentence will not be delivered. File 26251-1212:71 
Sec. Navy, July 26, 1916. 

17. Panama— General Order No. 121, September 17, 1914, does not apply to Panamanian 

authorities. The department's instructions must be requested in specific cases as 
they arise, giving particulars. File 26524-182, Sec. Navy, Sept. 17, 1915; C. M. O. 
31, 1915, 6. 

18. Prisoners. See General Order No. 121, Sept. 17, 1914, 15, 16. 

19. Process, service of. See General Order No. 121, Sept. 17, 1914, 23. 

20. Records— Desired by civil courts. See General Order No. 121, Sept. 17, 1914. 23. 

21. Requisitions. See General Order No. 121, Sept. 17, 1914, 10. 

22. Samoa — General Order No. 121, September 17, 1914, does not apply to persons in the 

naval service at Samoa, and there are no "civil authorities" at Samoa within the 
meaning of this general order. File 26524-125, Sec. Navy, Apr. 1, 1915: C. M. O. 
16, 1915, 5. 

23. Service of subpoenas— Leave of absence granted— Production of records in court — 

Preliminary examination of records — Tn cases in which the Federal or State an thorn ies 
desire to subpoena any person in the Navy or Marine Corps other than a naval prisoner 
as a witness, the following instructions will govern: 

(a) Commanding officers afloat or ashore are authorized to permit the service of 
such process upon the person named therein, but service will not be allowed without 
such permission of the commanding officer first being obtained. In cases in which 
service by mail is legally sufficient, the papers may ho addressed to the commanding 
officer with request that they be delivered to the than named therein. ( File 6769-21, 
July 19, 1911; 26524-59, May 1. 1914; 26524-275:5, See. Navy, Aug. S. 1916: 26524-168, 
J. A. G., Julv 9, 1915; 20276-112, Sec. Navy, Sept. 16. 1915; 26251-11233:1, Sec. Navyi 
Dec. 7, 1915; C. M. O. 31, 1915, 5.) 



268 GENERAL ORDER NO. 121. 

(b) In such cases the commanding officer is authorized to grant leave of absence 
to the person subpoenaed in order to permit him to obey such subpoena, unless the 
public interests would be seriously prejudiced by his absence, in which case full 
report of the matter should be made to the department. (File 26276, Apr. 27, 1908, 
May 19, 1908, June 9, 1908; 26276-118, Sec. Navy, Oct. 6, 1915; 26276-117, Sec. Navy, 
Oct. 9, 1915; 26251-11233:1, Sec. Navy, Dec. 7, 1915; 26276-137, Sec. Navy, May 2, 1916.) 
This includes cases in which the party is subpoenaed as a witness before a general 
court-martial of a State. (File 7022-3, Oct. 12, 1907.) 

(c) Officers of the Navy or Marine Corps are prohibited from producing official 
records or copies thereof in a State court in answer to subpoenas duces tecum, or 
otherwise, without first obtaining authority therefor from the Secretary of the Navy. 
(File 26276-26, June 16, 1910; Boske v. Comingore, 177 U. S., 460.) In all cases where 
copies of records are desired by or on behalf of parties to a suit, whether in a Federal 
or State court, such parties will be informed that it has been the invariable practice 
of the Navy Department to decline to furnish in the case of legal controversies, at the 
request of the parties litigant, copies of papers or other information to be used in the 
course of the proceedings, or to grant permission to such parties or their attorneys 
to make preliminary or informal examination of the records; but that the department 
will promptly furnish copies of papers or records in such cases upon call of the court 
before which the litigation is pending. (File 5467-8, Mar. 27, 1907; 12475-46, July 12, 
1913; 12475-80, J. A. G., June 7, 1916; 26251-11401:3, J. A. G., June 10, 1916; 12475-75, 
Sec. Navy, Apr. 11, 1916; 12475-74, Sec. Navy, Mar. 30, 1916; Boske v. Comingore, 177 
U. S., 461; file 12475-52:1, Aug. 7, 1914.) See General Order No. 121, paragraph 18. 

24. Subpoenas. See General Order No. 121, Sept. 17, 1914, 23. 

25. Witnesses desired. See General Order No. 121, Sept. 17, 1914, 15,16. 

GENERAL ORDER NO. 150, JUNE 14, 1915. See also Naval Militia. 

1. Oath— The Naval Militia should adhere strictly to the form of oath provided in General 

Order No. 150, June 14, 1915. If each State were permitted to change the oath pre- 
scribed, in various ways which it might think still met the requirements, uniformity 
would at once be gone and there would be irreconcilable chaos. File 3973-109:4, Sec. 
Navy, Aug. 31, 1915; C. M. O. 29, 1915, 8. 

2. Physical examination. See Naval Militia, 29. 

GENERAL STOREKEEPER, ASSISTANT. 

1. Drunkenness on duty— Tried by general court-martial. C. M. O. 5, 1915. 

GENERAL SUMMARY IN COURT-MARTIAL ORDERS. 

1. Explained— Commencing with Court-Martial Order No. 35, 1915, the arrangement of the 
'•' General summary" following the principal tabulation of general court-martial cases 
reviewed by the department during the month has been changed. 

The first column, as theretofore, represents the principal offenses. These offenses 
are in most cases abbreviations of the charges and therefore their phraseology should 
not be followed by convening authorities in preparing charges for trials. 

The figures opposite each offense represent the number of cases in which men were 
tried for that offense. It will be noted that the total of these figures is greater than 
the total number of cases tried. This is explained by the fact that some men were 
tried on more than one charge. C. M. O. 42, 1915, 7. 

GIFTS TO GOVERNMENT. 

1. Congress must authorize— Without an act of Congress authorizing it, a gift of pay 

(or half-pay) of an officer can not be accepted by the Government. Same, in case of 
gift of sailboat to Naval Academv, and of vawl presented for use of midshipmen at 
Naval Academy. File 13673-1442:1, J. A. G., Jan. 13, 1912. See also File 3442-3, 
Oct. 22, 1906: 1742-9, April 18, 1907. 

2. Pay— Gift of pay or half-pay. See Gifts to Government, 1. 

3. Prizes, cash— To be competed for by enlisted men on duty in Canal Zone. Accepted, 

but regarded as "informal an I unofficial." File 1742-9, Sec. Navy, Apr. 18, 1907. 

4. Sailboat— To Naval Academy— Sailboat of the Boston "Knock-about" type. File 

3442-3, J. A. G., Oct. 22, 1906. See also Gifts to Government, 1. 

5. Silver service — The act of May 20, 1908 (35 Stat., 171), provides for the acceptance by the 

Secretary of the Navy of silver service, etc., for ships presented by States. 

6. Yawl. See Gifts to Government, 1. 

GIN. See C. M. O. 56, 1880. 



GOVERNMENT HOSPITAL FOR THE INSANE. 269 

GIST. See also Words and Phrases. 

1. "Absence from station and duty without leave." See Absence from Station 

and Duty Without Leave, 19. 

2. Desertion. See Desertion, 54. 

3. Embezzlement. See Embezzlement. 

4. Perjury. See Perjury, 4. 

GOLD. 

1. Transportation of— In Government ships. File 27673-342, J. A. G., Dec. 23, 1915; 
6739-185, J. A. G., Oct. 9, 1915. 

GOOD-CONDUCT MEDALS. 

1. Extension of enlistments— Marine Corps. File 3980-1255, August, 1916. See also 
Marine Corps, 37; R-4172 (1) as amended. 

GOOD NAME OF NAVAL SERVICE. C. M. O. 7, 1912, 3; 5, 1913, 4. 

GOUGING. 

1. Fraudulently obtaining examination papers in advance— The accused (ofllcer 

under instruction) was tried under "Scandalous conduct tending to the destruction 
of good morals" for obtaining without permission from proper authority, and by 
corrupting and bribing with money an employee in printing office, a copy of the 
questions to be propounded to the members of the class at examination, and will- 
fully and fraudulently retaining the copy, thereby obtaining an unfair advantage of 
the other members of the class. C. M. O. 56, 1888. See also 13 J. A. G. 458, Aug. 18, 
1905; Blotter. 

2. Gunner— Cheating while undergoing a written professional examination— Tried by 

general court-martial and dismissed. See Blotter, 1. 

3. Midshipmen— Obtaining a copy of examination questions in advance. File 5252-73, 

J. A. G., Oct. 1, 1915, Sec. Navy, Oct. 2 .1915. See also Midshipmen, 22. 

4. Officer. See Gouging, 1; Officers, 13. 

GOVERNMENT CONTRACTORS. 

1. Bonds— Recommending the adoption of the system of annual bonds to accompany con- 

tracts for the furnishing of naval supplies in cases where such procedure is deemed 
advantageous to the Government. File 17271-4, J. A. G., May 22, 1908. 

2. Chief commissary steward— Tried by general court-martial for receiving a commission 

from. C. M. O. 69, 1903. 

3. Chief Sailmaker— Tried by general court-martial for recommending acceptance of 

supplies delivered by a contractor, which said supplies were not in accordance with 
the specifications governing purchase. C. M. O. 4, 1908. 

4. Illegal and unauthorized agreement with— By inspector of machinery. C. M. O. 

41, 1915. 

5. Investigation— An officer was detailed by Secretary of the Navy to investigate and 

ascertain whether any person in the naval service had originated or circulated reports 
or rumors by means of the public press concerning the relations between an officer 
and Government contractors, and was authorized to administer oaths to witnesses 
under R. S. 183. File 26251-8827:5; 16711-3, July 12, 1911. See also Oaths, 25. 

6. Officers— Employment by. See Retired Officers, 28,31,34-37. 

GOVERNMENT HOSPITAL FOR THE INSANE. 

1. Allotments by patients. See Allotments, 3, 4. 

2. Allowances for prisoners and patients at— Where certain articles are essential for the 

comfort and welfare of general court-martial prisoners confined in the Government 
Hospital for the Insane, the naval medical officer is authorized to forward a certificate, 
setting forth the articles desired, to the commandant, navy yard, Washington, P. C. 
The commandant has authority to approve the purchase of these articles not to 
exceed three dollars per month, the amount excepted by the court-martial sentence 
for "necessary prison expenses"; if there is no money due such prisoners these art icles 
will be charged to " Pay, miscellaneous," in accordance with the act of Februarv 16, 
1909, section 13 (35 Stat., 622). 

Naval patients not undergoing punishment when competent to sign pay receipts 
for such articles will be allowed to draw the same from pay due. and i tie commandant 
is authorized to approve such purchases upon certification of the naval medical officer 
that such patients are competent to sign pay receipts for nominal amounts necessary 
to the comfort and welfare of such patients. 



270 GOVERNMENT HOSPITAL FOR THE INSANE. 

There is no authority whereby patients not undergoing sentence and who are 
legally incompetent to sign such pay receipts can draw such sums unless a guardian 
or committee has been appointed. File 10060-61, Sec. Navy, June 3, 1915. See also 
File 8528-410, J. A. G., June 4, 1914: 10060-14, Sec. Navy, Jan. 30, 1911; 10060-46, Sec. 
Navy, June 12, 1914; C. M. O. 22, 1915, 8. 

3. Discharge. See Discharge, 25. 

4. Officers— The department has authority under the law to recommit an officer to the 

Government Hospital for the Insane after his discharge therefrom has been ordered 
by the Supreme Court of the District of Columbia in accordance with the finding of 
a jury that he is of sound mind. However, to avoid placing itself in the position of 
disregarding the court's action sufficient time should elapse and new evidence be 
obtained, so that a second habeas corpus proceedings could be successfully met. 
File 8528-327, Apr. 18, 1911. See also R. S., 761. 

5. Same — Where the Supreme Court of the District of Columbia decided that an officer of 

the Navy was entitled to his discharge from the Government Hospital for the Insane 
but the Chief Justice agreed to withhold the signing of an order until the Navy Depart- 
ment could be communicated with and be heard on the subject, the Navy Department 
ordered the officer in question to a naval hospital for treatment, and decided to take 
no further action in the case. (File 8528-327:2, Jan. 31, 1911. See also R. S. , 761.) 

Insane persons in the Navy lawfully committed by the Secretary of the Navy to 
the Government Hospital for the Insane should continue to be held by the superin- 
tendent of that hospital until the court orders otherwise or until they are cured. 
File 26251-4927:10, July 8, 1911, quoting letter from Department of Justice to the 
Interior Department, dated Mar. 28, 1912. 

6. Pay while at. File 10060-74:2, Sec. Navy, June 19, 1916. 

GOVERNMENT RESERVATIONS. 

1. Jurisdiction. See Jurisdiction, 12, 13, 22, 23, 83-85, 91, 95, 96, 105, 108, 117, 119-122. 

GOVERNORS OF STATES. 

1. Requisition— Necessary in certain cases. See General Order No. 121, Sept. 17, 
1914, 10. 

GRADE. 

1. Additional number in — Date of promotion. See Additional Numbers. 

2. Office of Chief of Bureau— Is not a grade. See Bureau Chiefs. 

GRADE AND RANK. 

1. Distinguished— "The distinction between rank and grade in both the Army and 
Navy" is well understood. (26 Op. Atty. Gen. 59.) 

" Grade expresses one of the divisions or degrees in the particular department or 
branch of the service according to which offices therein are classified or graded; and 
rank, which originally signified that which determines the right to command, and is 
still an inseparable incident to such right, expresses the position of officers of different 
grades, or of the same grade in point of authority, precedence, or the like of one over 
another." (16 Op. Atty. Gen. 416.) 

The words "office" and "grade" have been construed as svnonvmous and as 
something different from "rank" (20 Op. Atty. Gen. 358: 19 Op. Atty. Gen. 169). 
although it has been judicially held that "grade" may refer to a step or degree in 
either "office" or "rank," and it has also been given other interpretations, as, for 
example, that it refers to steps or degrees in the pay attached to an office or rank. 

The words "grade" and "rank" are sometimes used synonymously (16 Op. Atty. 
Gen. 416), and the precise meaning thereof in any case 'may be governed by other 
language in connection with which used, or surrounding circumstances from which 
the legislative intent may be plainly gathered. 

Thus, in the same statute, the word "grade" where used in different connections 
has been held to mean "rank" in one instance and "office " in another. (See 22 Op. 
Atty. Gen. 47, construing R. S. 422.) 

For twenty-four years the word "grade" as used in the Act of July 28, 1892 (27 Stat. 
321) has been construed in practice by the Navy Department as synonymous with 
rank. File 26521-144:1, Sec. Navy, July 10, 1916. 
GRAFT. 

1. Chief commissary steward— Receiving bribes from Government contractors. C M. 

O. 69, 1903. 

2. Civil employees— Pay roll. C. M. O. 129, 1898. 

3. Petty officer, by— Ship's store. C. M. O. 28, 1914. 



GUAM. 271 

GRAN© JURY. 

1. Presentment and indictment by grand jury. See Constitutional Rights of 

Accused, 13. 

2. Secrecy— By the policy of the law the investigations and deliberations of the grand jury 

are conducted in secret, and in the absence of statutes the grand jury is not bound 
to keep a record of the evidence before it. File 14625-183:17, Sec. Navy, Apr. 14, 1913. 

GRATUITY, DEATH. See Death Gratuity. 

GRATUITY, FOUR MONTHS. See File 28550-20. 

GRATUITY, ON DISCHARGE. See Exemptions in Sentences. 

GRAVAMEN. 

1. "Culpable" — Not gravamen of charge of "Culpable inefficiency in the performance of 

duty." C. M. O. 4, 1914; G. O. 68, Dec. 6, 1865. See also Culpable. 

2. Desertion. C. M. O. 31, 1915, 15. See also Desertion, 54. 

3. Eliminated by court. See Findings, 40. 

4. Fraudulent enlistment. See Fraudulent Enlistment, 23, 49. 

5. Referred to. C. M. O. 17, 1910, 4; 21, 1910, 8; 7, 1912, 2; 8, 1912, 3; 20, 1912, 4. 

GROG. 

1. Grog ration abolished— Grog, spirit ration, abolished from September 1, 1862, by act 
of July 15, 1862, sec. 4. (12 Stat. 565.) See also Marine Corps Gazette, March, 1916, 
pp. 52-53. 

GROUNDING SHIP. 

1. Officers— Tried by general court-martial. C. M. O. 20, 1883; 15, 1905; 17, 1913; 32, 1913; 
2, 1914; 3, 1914; 2, 1915; 3, 1915; 26, 1916; 27, 1916; 31, 1916. See also 13 J. A. G., 96; 
File 7893-03, J. A. G., Sept. 22, 1903. 

GUAM. 

1. Acting governor— An officer having been "duly appointed to act" as governor is, 

while serving under such appointment, entitled to the honors due to that office. 
File 4451. See also Acting Appointments, 1. 

2. Banishment— Sentence of banishment imposed by civil court. See Banishment, 1. 

3. Citizenship— See Aliens, 7; Citizenship, 20. 

4. Customs. File 10304-03, J. A. G., Jan. 25, 1904. 

5. Governor— Powers of— The naval governor of Guam "exercises plenary powers, subject 

to the supervision of the Secretary of the Navy and, of course, of the President, over 
all public affairs of the island of Guam, including the organization and procedure of 
the local courts in civil and criminal matters"; his authority extends " to the granting 
of reprieves and pardons, one of the highest prerogatives of sovereignty, and executive 
power;" and includes "the modification of laws and the abolition and institution 
of courts"; he "has authority to prescribe the form of penal code to be administered 
and to modify said code at* his pleasure, subject to the approval of his superiors." 
File 9351-976, Dec. 3, 1910. 

6. Same— Powers of— In the absence of congressional legislation authority of the naval 

governor of Guam is supreme. He is accordingly authorized to designate place of 
confinement for prisoners of the naval government of Guam, within territory under 
sovereignty of the United States. His action in designating a prison in the Philippine 
Islands as a place of confinement meets with the approval of the Secretary of the 
Navy in the case of a civilian convict ed by the civil court of Guam of misappropriation 
of public funds while postmaster at Guam. File 9351-1436 : 4, June 3, 1915. 

7. Jurisdiction— Of naval and civil courts. See File 9463-03, J. A. G., Dec. 19, 1903. 

8. Laws. See File 9351-976; 15 J. A. G. 42; Guam, 5. 

9. Postmaster— Convicted by civil courts and imprisoned in the Philippine Islands. See 

Guam, 6. 

10. Reports— An Executive order of May 11, 1907, directed that on and after June 1, 1907, 

all official communications from and to executive officers of Samoa and Guam shall 
be transmitted through the Secretary of the Interior in such maimer and under such 
regulations as he may prescribe. It will be entirely satisfactory to the Interior 
Department to receive copies of the ollicial reports relative to Guam and Samoa instead 
of the originals direct. (File 21393-26, June 4, 1907.) 

60756°— 17 18 



272 GUAM. 

The governors of Guam and of Tutuila, Samoa, are directed to forward all reports, 
etc., relating to territorial matters, as distinguished from matters of purely naval 
administration, to the Navy Department in duplicate in order that one copy may be 
forwarded to the Secretary of the Interior. File 21393-26, June 6, 1907. 

GUARANTY. 

1. Lost— Made by Government contractor to Inspector of Machinery. C. M. O. 41, 1915. 

GUARD. 

1. Duty— Of member of guard when prisoner attempts to escape. See Manslaughter, 9. 

GUARD DUTY. 

1. Army. See Manslaughter, 9. 

2. Marine Corps. See Manslaughter, 9. 

3. Sentence — Under no circumstances shall an offender [marine] be placed on guard, 

or required to perform extra guard duty, as a punishment whether serving afloat or 
on shore. (R-4184.) In a case where a general court-martial, among other things, 
sentenced a marine to "perform extra guard duty" the department remitted that 
part of the sentence "for the reason that the imposition of extra tours of guard duty as 
a penalty is inconsistent with the importance of such sen-ice, and tends to degrade 
that honorable and responsible duty of the soldier. Extra duty of that character 
should not, under any circumstances, be imposed as a punishment. C. M. 0. 26, 18S2. 

GUARDIAN. 

1. Ad litem— Appointment of guardian ad litem not necessary in a criminal case. File 

26251-6020 : 11, Sec. Navy, July 7, 1913. 

2. Death gratuity. See Death Gratuity, 13. 

3. Government Hospital for the Insane— Patient at. See Government Hospital 

for the Insane, 2. 

4. Infants— Allotments should be made to guardians. See Allotments, 5. 

5. Same — Consent of guardian for enlistment of. C. M. O. 22, 1915, 9; 49, 1915, 25. See 

also Fraudulent Enlistment, 57; Minors, 10, 11. 

GUEST. 

1. Drunk — Drunkenness is aggravated by fact that one is an invited guest of a club. 

C. M. O. 9, 1906, 1. 

2. Invited guest — In a navy yard should be treated with courtesy. CM. O. 53, 1910, 2. 

GLTLTY. 

1. Evidence — Inconsistent with plea of "guilty." See Statement of Accused, 15-16. 

2. In a less degree than charged. See Guilty in a Less Degree than Charged. 

3. Judge advocate — Not to suggest that accused plead "Guilty." Sec Judge Advo- 

cate, 34. 

4. Plea of— Precludes a regular defense. See Accused, 38; Evidence, 50-51. 

5. Same— Waives defects in specifications. See Absence from Station and Duty 

Without Leave, 29; Accused, 56. 

6. Statement of accused— Inconsistent with his plea of guilty. See Statement of 

Accused. 

7. Waiver— Of defects by plea of guilty. See G. C. M. Rec. 21478a, p. 11; Guilty, 5. 

GUDLTY KNOWLEDGE. See C. M. O. 129, 1898, 6. 

GUILTY IN A LESS DEGREE THAN CHARGED. 

1. " Absence from station and duty after leave had expired " — On charge of "De- 

sertion." C. M. O. 49, 1915, 11. See also C. M. O. 53, 1914, 5. 

2. " Absence from station and duty without leave" — Charged with "Scandalous 

conduct tending to the destruction of good morals" and found guilty of. C. M. O. 
11, 1905, 2. 

3. " Assaulting with a deadly weapon and wounding another person "—Found 

proved except "wilfully and maliciously" and "assault." See Assault, 28. 

4. Assault and striking, charged with— Court found proved except "maliciously" 

and "assault." See Assault, 28. 



GUILTY IN A LESS DEGREE THAN CHARGED. 273 

5. «* Being under the influence of liquor on guard "—As a less degree finding upon 

charge of "Drunkenness on guard" is to be regarded as substantially a finding upon 
the charge of "Drunkenness on guard." C. M. O. 209, 1901, 3. But see C. M. O. 26, 
1905, 1. See also Guilty in a Less Degree than Charged, 23. 

6. " Conduct to the prejudice of good order and discipline "—Is lesser degree of the 

offense of "Assaulting with a deadly weapon and wounding another person in the 
service." File 26251-6151 : 3, J. A. G., May 24, 1912. 

7. Same— Is a lesser degree than "Refusing to obey the lawful order of his superior officer." 

C. M. O. 37, 1909, 3. 

Note.— Limitation of punishment for "Conduct to the prejudice of good order and 
discipline" has since been raised to 15 years, etc. 

8. " Conniving In an attempt to lay plans toward the escape of a prisoner, and 

not representing same to his commanding officer "—Charged with "Enticing 
a prisoner to escape" and found guilty of. C. M. O. 48, 1889. 

9. Court is not obliged to accept plea— Court is not obliged to accept plea of guilty 

in less degree than charged, but may proceed to try for charge, and all matters of 
evidence relating to the charge and specification should be admitted as though such 
plea had not been made. However, where court decides to proceed with trial for the 
greater offense, the plea of guilty in less degree than charged should be rejected, and 
the accused advised by the judge advocate to substitute plea of "Not guilty, " and if 
he desires to do so, the court shall direct the trial to proceed as if he had offered the 
latter plea, thus putting the prosecution to the proof of every allegation contained 
in the specification. File 9919-03, Nov. 30, 1903. But see C. M. O. 25, 1902, 1. 

10. Same— Should the accused plead "guilty in a less degree than charged," the president 

shall warn him that he thereby precludes himself from the benefits of a regular defense 
as to the acts confessed by such plea. (Forms of Procedure, 1910, p. 22.) See 
Warning, 2. 

11. Same— Save in exceptional cases, a court-martial should try the accused for the offense 

as charged— The court, in general, should reject the plea of "guilty in a less degree 
than charged" and try the accused for the offense as charged. C. M. O. 22, 1903; 
8, 1905, 3; 37, 1909, 8; 14, 1910, 6; 30, 1910, 5; 1, 1911, 4; 10, 1912, 7; 26, 1912, 4; 16, 1913, 4. 

12. "Culpable inefficiency in the performance of duty"— " Negligence m performance 

of duty" is a lesser degree of. C. M. O. 12, 1910, 1; 14, 1912, 2; 4, 1913, 54. 

13. Same— "Negligent in obeying orders" is a lesser degree of. C. M. O. 12, 1904, 3. 

14. Same— Found guilty of "Inefficiency in the performance of duty." C. M. O. 5, 1906, 1. 

15. "Culpable negligence and inefficiency in the performance of duty"— Found 

guilty of ''Neglect of duty." C. M. O. 6, 1911, 3; 8, 1914, 2. 

16. Same— Charged with "Culpable inefficiency in the performance of duty," found guilty 

of "Inefficiency in the performance of duty." C. M. O. 4, 1914, 2. 

17. Desertion— In case" the charge is "Desertion" and the accused desires to admit the 

offense of "Absence from station and duty without leave" or "Absence from station 
and duty after leave had expired" only, the proper form of pleading, if the facts set 
forth in the specification are true except as to intent and the accused desires to admit 
them without proof, is as follows: To the specification — Guilty except to the words 
"desert" and "in desertion," and to those words, not guilty; and for the excepted 
words should be substituted, respectively, the words " absent'himself without leave" 
and "so absent" and to such words, guilty. To the charge— Guilty in a less degree 
than charged, guilty of "Absence from station and duty without leave" or "Absence 
from station and duty after leave had expired." 

18. Same — Upon examination of the record of proceedings of a general court-martial in the 

case of an enlisted man, it appears that the accused pleaded as to the specification 
of the first charge "guilty except to the words implying desertion, and to such words 
not guilty," and to the first charge "guilty in a less degree than charged, guilty of 
absence without leave." The court accepted this plea and then proceeded to the 
examination of a witness to prove the offense of desertion. The court erred in accept- 
ing this plea and yet proceeding with the trial upon the charge as preferred. When 
the court decided to proceed with the trial of the accused for the greater offense of 
"Desertion," admissions previously made in his plea should have been regarded as 
withdrawn, thus putting the prosecution to the proof of every allegation contained 
in the specification, and the judge advocate should then have advised the accused 
to substitute for his plea that of "not guilty," and had he declined to do so, the court 
should have directed the trial to proceed as if he had offered the latter plea. C. M. O. 
13, 1903, 4. 



274 GUILTY IN A. LESS DEGREE THAN CHARGED. 

19. Same — The court should not, except in exceptional cases, accept plea of guilty in a 

less degree than charged. C. M. O. 22, 1903. 

20. Same— Charged with "Desertion" found guilty of "Unauthorized absence." See 

General Order No. 110, July 27, 1914, 8; Findings, 2. 

21. Same— Charged with "Desertion" — Found guilty in a less degree than charged. See 

Guilty in a Less Degree than Charged, 1, 17, 18. 

22. "Disobeying the lawful order" etc. — Charged with, and found guilty of "Failure to 

obey tne lawful order," etc. C. M. O. 3, 1912, 3. 

23. " Drunkenness on guard "—"Being under the influence of liquor on guard" is re- 

garded substantially as a finding upon. C. M. O. 209, 1901, 3. But sec C. M. O. 26, 
1905, 1. 

24. "Enticing a prisoner to escape"— Charged with, and found guilty of "Conniving 

in an attempt to lay plans toward the escape of a prisoner, and not representing same 
to his commanding officer." C. M. O. 48, 1889. 

25. "Failure to obey the lawful order" etc.— Found guilty of when charged with "Dis- 

obeying the lawful order," etc. C. M. O. 3, 1912, 3. 

26. "Dnproperly hazarding the vessel under his command, in consequence of 

which she was run upon a shoal and seriously injured"— Charged with and 
found guilty of " Improperly hazarding the vessel under his command, in consequence 
of which she was rim upon a shoal and injured." C. M. O. 2, 1914, 2. 

27. "Inefficiency in the performance of duty"— Found guilty of when charged with 

"Culpable inefficiency in the performance of duty." C. M. O. 5, 1900, 1. 

28. Judge advocate— Should not advise court to accept plea of guilty in a less degree than 

charged. C. M. O. 29, 1914, 6-7. See also Judge Advocate, 123, 124. 

29. Kindred nature — It is well settled that a court-martial may find a prisoner guilty in 

a less degree than charged, but this is only in cases where there is a kindred nature 
between the offense charged and the offense found proved; as, for instance, between 
"Murder" and "Manslaughter," or between "Desertion" and "Absence from station 
and duty without leave." G. O. 68, Dec. 6, 1865. 

30. "Malingering"— Is not lesser degree of "Refusing to obey the lawful order of his 

superior officer." C. M. O. 37, 1909, 3. 

31. Manslaughter— Found guilty on charge of "Murder." C. M. O. 12. 1911, 5. 

32. "Murder"— Charged with and* found guilty of "Manslaughter." C. M. O. 12, 1911, 5. 

33. "Neglect of duty"— Charged with and found guilty of '■' Remissness in the performance 

of duty." C. M. O. 10, 1906, 1. 

34. Same— Found guilty of "Violating a lawful regulation," etc., when charged with 

"Neglect of duty." (Returned to court which found guilty of offense as charged.) 
C. M. O. 9, 1913/1. 

35. Same— Found guilty of "Neglect of duty" on a charge of "Culpable negligence and 

inefficiency in the performance of duty." C. M. O. 6, 1911, 3. 

36. "Neglect of duty while on guard"— Charged with "Sleeping on guard" and found 

guilty of. C. M. O. 11, 1889. 

37. "Neglecting to discharge a pecuniary obligation" — Charged with "Scandalous 

conduct tending to the destruction of good morals" and found guilty of. C. M. O. 
12, 1899, 3. 

38. " Negligence in performance of duty "—Is a lesser degree of "Culpable inefficiency 

in the performance of duty." C. M. O. 12, 1910, 1; 14, 1912, 2; 4, 1913, 54. 

39. "Negligent in obeying orders "—Charged with "Culpable inefficiency in the per- 

formance of duty" and found guilty of. C. M. O. 12, 1904, 3. 

40. Refusing to obey the lawful order of his superior officer— Irregular where court 

found accused guilty of "Malingering" on a charge of "Refusing to obey the lawful 
order of his superior officer." It would have been proper for the court to have found 
the accused guilty of "Conduct to the prejudice of good order and discipline." C. M 
O. 37, 1909, 3. 

Note. — The Limitations of punishment for "conduct to the prejudice of good 
order and descipline" has been increased to 15 years. 

41. " Remissness in the performance of duty " — Charged with "Neglect of duty " and 

found guilty of. C. M. O. 10, 1906, 1. 

42. " Scandalous conduct tending to the destruction of good morals" — Charged 

with and found guilty of "Absence from station and duty without leave." C. M. O. 
11, 1905, 2. 

43. Same — Charged with and found guilty of "Neglecting to discharge a pecuniary obli- 

gation." C. M. O. 12, 1899, 3. 



GUILTY IN A LESS DEGEEE THAN CHARGED. 275 

44. " Sleeping on guard "—Charged with and found guilty of "Neglect of duty while on 

guard." C. M. O. 11, 1889. 

45. Specifications — "Circumstances which are embodied in the charges and upon which 

constructive guilt is charged, are necessarily dependent upon motive, by which the 
degree or criminality is determined. It consequently rests with the court to ascertain 
this particular degree, and declare it by their finding; and the verdict may be special, 
as it is not necessary that it be general, as to the guilt or acquittal of the prisoner. 
That is, a portion of the specification may be found, and other points declared void 
of criminality, or the entire circumstances set forth be proved, and yet the prisoner 
be declared without guilt." (De Hart, p. 180.) C. M. O. 5, 1912, 11. See also Find- 
ings, 27. 

46. «* Through inattention and negligence suffering a vessel of the Navy to be 

run upon a shoal and seriously injured" — Charged with, and found guilty of 
"Through inattention and negligence suffering a vessel of the Navy to be run upon 
a shoal and injured." C. M. O. 2, 1914, 2. 

47. " Through negligence suffering a vessel of the Navy to be run upon a reef and 

stranded," and found guilty of— "Through negligence due to error of judgment, 
suffering a vessel of the Navy to be run upon a reef and stranded." C. M. O. 29, 1903. 

48. " Unauthorized absence "—Charged with "Desertion" found guilty of "Unauthor- 

ized absence. See General Order No. 110, July 27, 1914, 8; Findings, 2. 

49. " Violating a lawful regulation," etc.— Found guilty of, when charged with "Netr- 

lect of duty." Returned to court which found guilty of offense as charged. C. M. O. 
9, 1913, 1. 

50. "Willful injury "—Charged with "Willful destruction" and court found "Willful 

injury" proved instead. C. M. O. 37, 1912, 1. 

GUILTY BUT WITHOUT CRIMINALITY. See Desertion, 77; Findings, 69. 

GUILTY BUT WITHOUT CULPABILITY. See Absence from Station and Duty 
after Leave had Expired, 9; Findings, 44; File 26251-12159, Sec. Navy, Oct 30, 
1916, p. 4. 

GUN POINTER. 

1. Loss of pay— For both summary courts-martial and deck courts should be based upon 
the actual pav, not including extras for mess cook, gun pointer, acting coxswain, etc. 
C. M. O. 24, 1909, 3. 

GUNBOATS. 

1. Asiatic station — Commander in chief stated he did not wish to discourage commanding 
officers of small gunboats of Asiatic Fleet from taking such risks in the navigation of 
the rivers on which they are employed as are necessary and justifiable, but, on the 
contrary, desired to encourage their familiarizing themselves as far as possible with all 
the difficulties of navigation they might be called upon to surmount. C. M. O. 19, 
1910, 3. See also Navigation, 86, 88. 

•GUNBOAT COMMISSIONS." Sec Commissions, 23, 29. 

GUNNERS. 

1. Acting gunner. See Acting Gunner, 1. 

2. Cheating during examination— Tried by general court-martial and dismissed. Sec 

Blotter, 1. 

3. Command— Exercise of. See Command, 21. 

4. Drunk on duty. C. M. O. 7, 1879. 

5. Gouging. See Blotter, 1. 

6. Promotion— To ensign. See Appointments, 18. 

7. Theft. C. M. O. 8, 1879. 

HABEAS CORPUS. See also Fraudulent Enlistment; Jurisdiction. 

1. Appeals. See Habeas Corpus, 18. 

2. Arrest of petitioner— After discharge— An enlisted man discharged on habeas corpus 

proceedings was afterwards arrested on charge of "Perjury."" in connection with 
sworn statements when enlisting, and held for trial in civil courts of the United Si at es 
at the instance of the department. (File 5939-1, Oct. 12. 1906;) Later prosecution 
was discontinued because of the peculiar circumstances of hardship it involved, the 
Secretary of the Navy concurring in the United States attorney's action to this 
effect. (File 5939-7, Feb. 18, 1907.) See also U. S. r. Cnurs Shee, 71 Fed. Rep. 277. 

3. Charges and specifications— Sufficiency of can not be reviewed. (Ex parte Dickev, 

204 Fed. Rep. 322.) \ v j> 



276 HABEAS CORPUS. 

4. Contempt of civil court— Enlisted man failing to make a return to writ of habeas 

corpus. See Civil Authorities, 11. 

5. Desertion. See Desertion: Habeas Corpus, 16. 

6. Drunk at time of enlistment— An enlisted man arrested by a civil officer as a de- 

serter from the Navy will not be discharged on habeas corpus upon the allegation that 
he was intoxicated at the time of enlistment. " It seems to me illogical to say that a 
man can commit a crime and when arrested obtain a discharge on the ground that the 
original enlistment was not regular or proper." (In re Hamilton and Carroll, Superior 
Court, Fulton Countv, Ga., Atlanta Circuit, File 7969-04; 79S8-04. See also In re 
McVey. 23 Fed. Rep." 878; In re Grimley, 137 U. S. 147.) 

7. Errors in procedure — Can not be reviewed by civil courts. (In re McVey, 23 Fed. 

Rep. 878). 

8. Federal Courts. See General Order No. 121. Sept. 17, 1914, 11. 

9. Fraudulent enlistment — Concealing discharge obtained by habeas corpus pro- 

ceedings. See Fraudulent Enlistment, 17. 

10. Same — De facto enlistment— A fraudulent enlistment is an enlistment and subject 

to jurisdiction of naval courts-martial. See Fraudulent Enlistment, 22, 35. 

11. Same— Drunk when enlisting. See Habeas Corpus, 6. 

12. Ineffective though discharged. See Jurisdiction. 

13. Judge advocate — Present in closed court. See Judge Advocate, 105. 

14. 3Iilitary guard— Charged with "Manslaughter." (U. S. v. Lipsett, 156 Fed. Rep. 71; 

U. S. v. Clark, 31 Fed. Rep. 710). See Manslaughter, 9. 

15. Minors— Fraudulently enlisting Dy misrepresenting age. can not set up their fraud as 

a defense and civil courts will not interfere. See Fraudulent Enlistment, 57, 60. 

16. Same — An enlisted man on his trialfor "Desertion' - — Admitted all the facts as to deser- 

tion and the evidence showed that he was enlisted when only 16 years of age without 
his parents' consent or knowledge. The accused contended that his enlistment 
was illegal and void. Such a man if found guilty and sentenced would not be released 
on habeas corpus proceedings. C. M. O. 217, 1902, 3-4. 

17. Officer— Acting as counsel for accused should not institute habeas corpus proceedings 

or a suit for damages against members. File S464-03. See also Counsel, 29, 36. 

18. Opinion — Of the court should be forwarded to Judge Advocate General — The Forms of 

Procedure, 1910, page 76. provides: "Should the court order the discharge of the partv, 
the officer making the return, or counsel, should note an appeal pending instructions 
from the Navy Department, and he shall report to the Judge Advocate General of 
the Navy, the action taken by the court and forward a copy of the opinion of the court 
as soon as it can be obtained*." 

The above instructions, which "have full force and effect as regulations" (Navy 
Regulations, 1913, R-901 (3). ) should be followed strictly in every case in which a de- 
cision adverse to the United States is rendered in habeas corpus cases. File 26251- 
9965:21, J. A. G., Oct. 4, 1915; C. M. O. 35, 1915, 9. 

19. Procedure, errors in. See Habeas Corpus, 7. 

20. Review of courts-martial by civil courts. See Jurisdiction, 18, 28, 35-39. 

21. Sentences— If sentence imposed is not legally void civil courts will not review. 

22. Service of writs.— See General Order No. 121, Sept. 17, 1914, 11, 12. 

23. State courts. See General Order No. 121, Sept. 17, 1914, 12. 

HAGUE CONFERENCE. See Retired Officers, 38. 
HAIR OF PRISONERS CLD7PED. See Prisoners, 4. 

HAITI. 

1 . Captains of the port— Detail of chief pay clerks and pay clerks. File 5460-84, Aug. 16, 

1916. 

2. Collectors of custom— Detail of chief pay clerks and pay clerks. File 5460-84, Aug. 16, 

1916. 

3. Enlisted man— Tried bv general court-martial for offense committed while on shore 

dutv. C M. O. 10, 1915, 3. See also C. M. O. 49, 1915, 12. 

4. Gendarmerie. See Officers of the United States, 1. 

5. General court-martial— Convening of. on foreign territory. C. M. O. 42, 1915, 10. See 

also C. M. O. 4S, 1915; Jurisdiction. 53. 

6. Loss of property — Claim of the director general of the Haitien Wharf Company for 

certain packages claimed to have been lost by said company during the landing 
of U. S. Naval Forces at Port-au-Prince, Haiti, on or about August 13, 1915. File 
26893-206, Sec. Navy, Nov. 16, 1915. 



HAITI. 277 

7. Military commissions. See Military Commissions; Provost, 1. 

8. Officer — Tried by general court-martial at Marine Barracks, La Caserne, Port-au-Prince, 

Haiti. C. M. O. 48, 1915. See also C. M. O. 42, 1915, 10. 

9. Pay clerks, etc.— On duty in Haiti. C. M. O. 30, 1916, 8. 
10. Provost. See Military Commissions; Provost, 1. 

HALF-WITTED. C. M. O. 49, 1910, 17. See also Insanity, 19. 

HANDWRITING. 

1. Acquittal— Should be recorded in handwriting of judge advocate. See Acquittal, 17. 

2. Expert witness. See Expert Witnesses, 3. 

3. Findings— To be in handwriting of judge advocate. See Findings, 48-50; Judge Ad- 

vocate, 81. 

4. Genuineness of. See Handwriting, 6. 

5. Identification of— Handwriting of accused to prove him guilty of "Theft." C. M. O. 1, 

1913, 6. 

6. Proof of— In any proceeding before a court or judicial officer of the United States where 

tliO genuineness of the handwriting of any person may be involved, any admitted or 
proved handwriting of such person shall be competent evidence as a basis for compari- 
son by witnesses, or by the jury, court, or officer conducting such proceeding, to prove 
or disprove such genuineness. (Act, Feb. 26, 1913, 37 Stat. 683.) 

7. Sentences— To be in handwriting of judge advocate. See Sentences, 52. 

8. Same— In revision— To be in handwriting of judge advocate. See Revision, 18, 33-36; 

Sentences, 92. 

9. Same— Not to be typewritten. G. C. M. Rec. 22105; 22149. 

HANGAR, DIRIGIBLE. See File 26842-8:4, Sec. Navy, July 15, 1916. 

HARD LABOR. 

1. Confinement — In all cases where the limitations of punishment for general courts- 

martial provide for confinement, hard labor during such confinement shall be included. 
(R-900 (8).) See also Confinement, 16. 

2. Extra police duties — All sentences of general court-martial involving confinement 

should contain a provision that such confinement shall be at hard labor instead of 
involving the performance of extra police duties. C. M. O. 6, 1909, 2; 42, 1909, 6; 47, 
1910, 4. See also Confinement, 17. 

3. Same — Where a court-martial sentenced an accused to confinement at hard labor and 

also adjudged extra police duties the department remitted the performance of extra 
police duties stating in part, the inclusion of extra police duties "being manifestly 
inappropriate, as its execution in conjunction with confinement at hard labor would 
be both unnecessary and impracticable." C M. O. 46, 1902, 1. 

4. Mandatory— Sentences of general courts-martial including confinement shall contain 

a provision requiring that the person sentenced shall perform hard labor while so 
confined. C. M. O. 47, 1910, 4; 23, 1912, 4; G. C. M. Rec. 21161; 22745. 

5. Officers— Imprisonment of dismissed officer in a penitentiary at hard labor. C. M. O. 

173, 1902; 50, 1914. See also Confinement, 18. See also C. M. O. 10, 1916, where 
a Paymaster's Clerk, U. S. M. C, was sentenced to confinement in a prison or 
penitentiary without hard labor. 

6. Same— Officer confined in penitentiary without hard labor. C. M. O. 15, 190S, 3. 

7. Pay clerk— A pay clerk was sentenced by general court-martial to be dismissed and 

imprisonment at hard labor. Since the Limitation of Punishment did not provide 
for hard labor for the offense of which the accused had been convicted, the department 
remitted that part. C. M. O. 173, 1902. 

" HAULING FIRES." C. M. O. 37, 1915. 

HAVING LIQUOR IN HIS POSSESSION. 

1. Enlisted man— Charged with. C. M. O. 63, 1892; 64, 1892. 

HAWAII. 

1. Citizenship. See Citizenship, 21. 

2. Customs— Right of a collector of customs to enter upon a naval reservation without 

assent of commandant. File 3312-04, 3377-04, J. A. G., Apr. 14, 1904. 

3. General Order 121. See General Order No. 121, Sept. 17, 1914, 13. 

4. Woman— Chief carpenter tried by general court-martial for improper relations with a 

Hawaiian woman. C. M. O. 21, 1915. 



278 



HAZING. 



HAZING. See also Midshipmen. 

1. "Board of inquiry"— Finding by— As to the issues of fact. See "Board of In- 

quiry," 1; Hazing, 6. 

2. "Brutal" hazing — "Court-martial" may adjudge imprisonment. See Hazing, 6. 

3. "Court-martial"— Of midshipmen— Discretion of superintendent and "approval" of 

Secretary of the Navy. See Hazing. 6: Midshipmen, 27. 

4. Sanie— Composed of "not less than three commissioned officers." C. M. O. 31, 1915, 11. 

See also Hazing, 6: Midshipmen. 27. 

5. " Cruel " hazing— "Court-martial " may adjudge imprisonment. C. M. 0. 31, 1915, 11. 

6. Defined and discussed— The policy of Congress is to leave the internal administra- 

tion and discipline of the Naval Academy largely in the hands of the officials at the 
Academy. 

In this respect, no distinction is made by existing law between hazing and other 
offenses committed by midshipmen against good order and discipline, except that 
no midshipman may be dismissed for a single act of hazing without trial by "court- 
martial." 

No midshipman is to be tried by "court-martial" for hazing, except in the "dis- 
cretion" of the Superintendent and with the "approval" of the Secretary of the 
Navy. 

The "court-martial" is to be ordered by the Superintendent of the Naval Academy, 
in cases of hazing, and is to be composed of "not less than three commissioned officers." 

The "court-martial" has discretion as to the sentence to be imposed upon con- 
viction. While it may sentence the accused to dismissal in any case, and to imnrisorj- 
ment also in cases of "brutal or cruel" hazing, it is not mandatory to impose a sentence 
of dismissal or imprisonment in any case. 

The '• court -martial's" finding and sentence are subject to review by the convening 
authority and the Secretary of the Navy, "as in the cases of other courts-martial." 
Although, perhaps, not necessary, it is advised that a sentence of suspension or dis- 
missal be submitted to the President for confirmation. 

If the Superintendent does not desire to bring midshipmen to trial for hazing, then 
under the law no trial may be had, but the offense may be dealt with by the Superin- 
tendent without the intervention of a "court-martial." In that event, no midship- 
man could be dismissed for hazing except upon written charges by the Superintendent, 
an opportunity for written reply by the accused, a finding by a "board of inquiry" 
as to the issues of fact, and a decision by the Secretary of the Navy to dismiss the 
accused, which decision must have the "written approval of the President." 

Proceedings for dismissal without trial by "court-martial " can not be had for " a sin- 
gle act of hazing." The accused in such case must either be tried by "court-martial" 
or punished otherwise than by dismissal. The words "a single act of hazing" are 
to be taken in their literal sense. If an accused was guilty of but one "act" of hazing, 
he can not be dismissed without trial by "court-martial," notwithstanding that 
several different persons may have been victims of the "single act." Thus, one order 
obeyed by several midshipmen would be only a single "act" of hazing, although it 
might legally be more than one "offense." On the other hand, if one midshipman, 
in hazing another, gives several orders which are obeyed, this would constitute 
several "acts" of hazing although there was only one victim and the several distinct 
transactions occurred at the same place and very near each other in one continuing 
attempt to defy the law. fin connection with the above conclusions see act of June 
23, 1874, 18 Stat. 203: act of Mar. 2, 1895, 28 Stat. 838; act of Mar. 3. 1903, 32 Stat. 1198; 
act of Apr. 9, 1906, 34 Stat. 104.) File 26283-925, J. A. G., Sept. 4, 1915; C. M. O. 
31, 1915, 10-12. See also File 5252-43, J. A. G., Oct. 5, 1911. For the act of Apr. 9, 
1906 (34 Stat. 104), see 14 J. A. G. 100. 

7. Midshipman— Charged with. C. M. O. 12, 1913, 1-3: G. C. M. Rec. 25933 (1912). 

In the fall of 18S5, a cadet at the Naval Academy was dismissed after trial by court- 
martial, for the offense of hazing (see 39 Executive Let. Book, 207). Subsequently, 
however, he was restored to the Naval Academy, it ha vine been shown that his offense 
consiste:! in maltreating a candidate for admission to the Academy who had not at 
that time entered the fourth class, but was a visitor in the Academy grounds, and that 
such conduct was not "the offense commonlv known as hazine" within the meaning 
of the act of Jtme 23, 1874 (18 Stat. 203). File 10310-04, J. A. G., Jan. 12, 1905. See 
also 18 Op. Attv. Gen. 292. 

Midshipmen dismissed under the act of June 23. 1874 (18 Stat. 203). Act of Mar. 3, 
1903 (32 Stat. 1198) construed with reference to the foregoing statute. File 8585-04, 
J. A. G., Oct. 13, 1904. 



HAZING. 279 

8. Naval Academy, at. See Hazing, 6. 

9. Powers of Secretary of Navy— To dismiss. See Midshipmen, 80. 

10. Reappointment of midshipman dismissed for hazing. See Midshipmen, 5, 70. 

11. "Single act of hazing"— No dismissal without trial by "court-martial." See Hazing, 

6. 

12. Same— May be punished otherwise than by dismissal if no "court-martial." See 

Hazing, 6. 

13. Same— The words "a single act of hazing" are to be taken in their literal sense. See 

Hazing, 6. 

HEALTH RECORD. See C. M. O. 42, 1915, 2; File 4778-95, Sec. Navy, Dec. 9, 1916. 

« HEREAFTER." 

1 . Statutes— While the word "hereafter " used in the provisions contained in appropriation 
acts is commonly indicative of permanent legislation, other language may have the 
same effect, where the purpose is clear. File 5942-192, Sec. Navy, March 12, 1915;. 
C. M. O. 12, 1915, 12. See also Memo. J. A. G., March 5, 1915. 

HERNIA. 

1. Operation for— Not compellable. See Surgical Operations, 3, 6. 

HEROISM. 

1. Officers— Promotions. See Promotion. 

HEARSAY EVIDENCE. 

1. Certificate of civil officer as. See Certificates, 3-5. 

2. Court.— Criticized for admitting evidence, which was clearly hearsay, over the objection 

of counsel for the accused. C. M. O. 41, 1909, 1. Seealso C. M. O. 65, 1907; 17, 1910, 11; 
21, 1910, 16; 7, 1911, 9; 11, 1912, 2; 98, 1894, 2; 57, 1897, 2; 54, 1898; 19, 1915, 4. 

3. Defined and discussed — The accused was charged with " Desertion" and pleaded not 

guilty to the charge and specification thereof. While a witness on the stand in his 
own behalf he testified that he left the service in order to go to North Wales for the 
purpose of claiming an inheritance left him upon the recent death of his mother, and 
that he intended returning to the United States and to the Marine Corps as soon as he 
might be able to adjust his affairs in North Wales. It is observed that he was asked 
the following question by the court: 

"34. Q. Have you in your possession any papers to substantiate the evidence you 
have given? 

"A. I have one here that is not much, but it will give some light on the subject.'' 

The judge advocate objected to the introduction in evidence of the "paper" in 
question on the ground that it was not subject to cross-examination, but the record 
shows that the court overruled the objection and admitted the paper in evidence. 
This "paper" was a letter addressed to the accused. In the opinion of the depart- 
ment the court erred in its ruling upon the objection interposed by the judge advocate. 
As stated by the judge advocate in his objection, the paper was not subject to cross- 
examination and its admission was a clear violation of the rule against the admission 
of hearsay evidence. As stated in Greenleaf in his work on Evidence, sixteenth 
edition, Volume I, pages 182 and 183: 

"The term 'hearsay' is used with reference to that which is written, as well as to 
that which is spoken, and in its legal sense it denotes that kind of evidence winch does 
not derive its value solely from the credit to be given to the witness himself, but 
rests also in part on the veracity and competency of some other person. Hearsay 
evidence as thus described is uniformly held incompetent to establish any specific 
fact which in its nature is susceptible of being proved by witnesses who can speak 
from their own knowledge. That this species of testimony supposes somet hing better 
which might be adduced in the particular case is not the'sole ground of its exclusion. 
Its extrinsic weakness, its incompetency to satisfy the mind as to the existence of the 
fact, and the frauds which may be practiced under its cover combine to support, the 
rule that hearsay evidence is totally inadmissible. 

"Hearsay rule, then, is encountered whenever a testimonial assertion is offered in 
evidence without being subjected to oath and cross-examination. Thus three dis- 
tinct groups of questions present themselves in connection with the hearsay rule. 
viz, (a) Is the hearsay rule applicable to the case in hand, i. e., is the evidence offered 
as a testimonial assertion? (b) Is there any exception to the hearsay rule to be made 
for the evidence offered? (c) If the hearsay rule is applicable, and if no recognised 



280 HEARSAY EVIDENCE. 

exception covers the case in hand, is the hearsay rule satisfactory, i. e., has there been 
in fact, an oath and cross-examination? The first of these groups of questions is 
treated in the ensuing sections 100-114; the second in sections 114a to 162; the third, 
in sections 163 to 168." 

While it is true that there are real and apparent exceptions to the hearsay rule, the 
case under discussion does not fall within either of the classes of exceptions. Courts- 
martial are bound, in general, to observe the rules of the law of evidence by which the 
United States courts of criminal jurisdiction are governed (Forms of Procedure, 
1910, p. 135), and neither the letter in question nor the second letter which the court 
permitted the accused subsequently to introduce should have been admitted. It 
is to be noted, however, that the judge advocate did not object to the introduction 
of the second letter. CM. O. 30, 1912, 3-5. See also C. M. O. 17, 1910, 12; File 
26251-9019, Sec. Navy, May 21, 1914. 

4. Same— Greenleaf states that hearsay evidence is "That form of evidence which does 

not derive its value solely from the consideration to be given to the witness himself, 
but rests in part on the veracity and competency of some other person." 

Hearsay evidence is objectionable, (1) because it is secondary evidence and the law 
requires primary evidence; (2) the real witness is not testifying in court under the 
sanction of an oath; and (3) the opposite party, and especially the defendant in a 
criminal case, has no opportunity to be confronted with a witness against him, or 
to exercise his right of cross-examination. There are, of course, exceptions to this 
rule of exclusion; and again there are some exceptions which, upon examination, will 
be found to relate to relevant facts and to be, as such, not liable to objection as hearsay. 
Thus, where the question at issue is whether certain words were actually spoken by 
a person other than the witness, a recital of the words by the witness is original tes- 
timony and admissible. 

The principal exceptions to the inadmissibility- of hearsay evidence are: (1) Con- 
fessions or admissions against interest; (2) dving declarations; (3) res gestae. (Forms 
of Procedure, 1910, p. 138.) 

5. Example of— A witness was permitted to testify to a statement made to him by the 

corporal of the guard to the effect that the accused had been stationed as orderly 
at the cabin door, which statement was not made in the presence of the accused. 
C. M. O. 97, 1898. See also G. C. M. Eec. 30485, pp. 78, 178-180 683; Desertion, 
111 (p. 178). 

6. Same — In general court-martial proceedings against commanding officer of IT. S. S. 

Culgoa for collision with a schooner, testimony was admitted to the effect that "it 
was a matter of common report on the Culgoa subsequent to the collision with the 
' Wilson & Hunting ' that the latter was in the habit of having her lights ready but not 
lit." Held: That this testimony should have been excluded as hearsay. C. M. O. 
38, 1905, 2-3. 

7. Same — During the direct examination of the first witness for the prosecution, he testified 

to statements made to him by a sentry soon after the escape of the accused from the 
ship (one of the offenses with which he was charged). This testimony was properly 
objected to by the counsel for the accused as being hearsay, but the court overruled 
the objection and permitted the introduction of said evidence. This decision was 
entirely erroneous, but it did not result in injury to the accused, as the sentry referred 
to was subsequently called as a witness, and substantially the testimony in question 
was given by him. C. M. O. 74, 1903, 1. 

8. Same — The record discloses no substantial defense. The direct and positive evidence 

adduced for the prosecution stands uncontradicted except in one particular, the 
exception referred to being the admission by the court of the testimony of a reporter 
on the Providence Journal, who stated that one member of the firm of * * * had 
told him (the witness) that the firm had paid no commissions to the accused. This 
evidence was objected to by the judge advocate, very properly, upon the ground that 
it was hearsay. Its admission by the court, however, does not constitute material 
error, since in so far as it had weight, it was in favor of the accused. C. M. O. 69 
1903, 2. 

9. Same — The court, erred when it asked a witness to repeat unsworn statements made to 

him (during his investigation), by another witness who had been before the court and 
testified for the prosecution. C. M. O. 19, 1915, 4. 
10. Statements in presence of accused. See Accused, 58; Desertion, 123, 125. 



HOSPITAL FUND. 281 

HIRE. 

1. Definition— The term "hire" has application to the more menial, manual, or mechanical 
employments, and commonly implies employment for short periods, as a day or a 
week; and is distinguished from the word "salary." in that the latter has reference 
to the more mental forms of employment and implies greater permanence of employ- 
ment and payment at long intervals. Hire is more on the plane of wages than of 
salary though in a sense it comprehends both. (2 W. & P. (2d ed.) 888). File 4924- 
435, J. A. G., June 20, 1916. 

HOLIDAY. 

1. Court — May not adjourn over holiday without permission. See Adjournment op 
Courts-Martial. 

HOMESTEAD ENTRY. 

1. Information concerning. See File 5166-6 (1907). 

HOMICIDE. See Manslaughter; Murder. 

"HOMICIDE BY MISADVENTURE." See Manslaughter, 12, 13. 

HONOR. 

1. "Code of honor" in military life— "In military life there is a higher code termed 
honor, which holds its society to stricter accountability; and it is not desirable that 
the standard of the Army [Navy] shall come down to the requirements of a criminal 
code." (Swaim v. U. S., 28 Ct. Cls. 173.) See G. C. M. Rec. 30485, p. 767; Con- 
duct Unbecoming an Officer and a Gentleman, 12. 

HONORS. 

1. Acting governor of Guam. See Guam, 1. 

"HONORABLY ACQUIT." See Acquittal, 18. 

HONORABLE DISCHARGE. 

1. Blanks— Stolen. File 26283-977. 

2. Same— Sale of. File 26509-163:2, July, 1916. 

3. De facto enlistment having been served— When not regularly enlisted, a man is 

nevertheless entitled to an honorable discharge where he serves out a de facto enlist- 
ment. File 5839-04, J. A. G. See also De facto, 2. 

HOPE. 

1. Confessions See Confessions, 16. 

HOSPITALS. 

1. Army — Enlisted men of naval service under treatment in. See File 2642-03. 

2. Commanding officers of naval hospitals — Punishments by— When so empowered 

by the Secretary of the Navy to order summary courts-martial, the commanding 
officer of a naval hospital or hospital ship shall be empowered to order such courts 
and deck courts, and inflict the punishments which the commander of a naval vessel 
is authorized bv law to inflict, upon all enlisted men of the naval service attached 
thereto, whether for dutv or as patients. (Act, Aug. 29, 1916, 39 Stat. 586. ) See CM. 
0.30,1916. 

3. Deck courts— Convening of, at. See Deck Courts, 10, 14; Hospitals, 2; Summary 

Courts-Martial, 21, 22. 

4. Fund. See Hospital Fund. 

5. Government Hospital for the Insane. See Government Hospital for the 

Insane. 

6. Patients — Punishment of. See Hospitals, 2. 

7. Punishments— By commanding officers. See Hospitals, 2. 

8. Summary courts-martial— Convening of, at. See Hospitals, 2; Summary Courts- 

Martial, 21, 22. 

HOSPITAL APPRENTICES. 

1. Clothing outfits for. See Clothing Outfits, 1. 

HOSPITAL FUND. 

1. Checkage of 20 cents per month— For support of hospital fund is authorized by 
Sections 1624, 4808, Revised Statutes. File 3980-452 :2, J . A. G., Dec. 8, 1909. p. & 
22465-5, J. A. G., Sept. 30, 1915. 



282 HOSPITAL FUND. 

2. Same— 20 cents per month is credited to hospital fund if person is tinder sentence of 

general court-martial to forfeit pay. (45 S. and A. Memo. 662; 58 S. and A. Memo, 
42; 106 S. and A. Memo, 1305.) 

3. Same — Can not be made if no pay is earned. (116 S. and A. Memo. 3475.) File 22465-5, 

J. A. G., Sept. 30, 1915. 

4. Expenditure— History of. See 14 Comp. Dec. 602; 121 S. and A. Memo. 1697. 

5. Fleet Naval Reserve— File 2S350-23, p. 2, 

6. Naval auxiliary service — ''Deductions" can not be made where person is under treat- 

ment for venereal disease, no pay being earned. (See Regulations for the Naval 
Auxiliary Service, 1914, pars. 109, 95.) File 22465-5, J. A. G., Sept. 30, 1915. 

HOSPITAL RECORDS. 

1. Copy requested— Policy of department. File 5195-61:1, J. A. G., Mar. 21, 1912. See 
also Medical Records, 1. 

HOSPITAL SHIPS. 

1. Command of. See File 15285-59:3. 

2. Deck courts— Convening of by commanding officer. See Hospitals, 2,3. 

3. Pay officer— Assignment to. See File 7036-279, J. A. G., Jan. 18, 1913. 

4. Punishments by commanding officer. See Hospitals, 2. 

5. Summary courts-martial— Convening of by commanding officer. See Hospitals, 2. 

HOUSEHOLD GOODS. See Claims, 2. 

HUSBAND AND WIFE. See Wife. 

HYDROGRAPHIC OFFICE. See File 24501-16, Apr. 19, 1910; 24501-19, Aug. 2, 1910; 
24501-19, Aug. 3, 1910; 24501-22, Dec. 29, 1910; 24501-23, Jan. 31, 1911; 24501-24, Mar. 
8, 1911: 24501-26:1, Jan. 25, 1912; 24501-31, Aug. 14, 1913; 5381-00, J. A. G., Apr. 2, 
1904; 9386-14:18, J. A. G., Jan. 20, 1916. 

HYDROGRAPHIC OFFICE CHART. 

1. No. 967. See C. M. O. 2, 1914, 2; 3, 1914. See also Charts, 3. 

HYPOTHETICAL QUESTIONS. 

1. Answers to— Department's policv— It is the established practice of the department not 

to answer hypothetical questions. (File 26504-192, Sec. Navy, Oct. 28, 1913.) The 
department has found it necessary tc adopt the rule that decisions and legal opinions 
should not be rendered upon hypothetical questions. The department could not 
grant the special privilege of corresponding with and giving opinions on hypothetical 
questions to ore of the many officers in the naval service without extending the 
same courtesy to all other officers; and the current necessary work in the office of the 
Judge Advocate General is amplv sufficient to keep the entire office force therein busy. 
(File 26252-76, J. A. G., May 16, 1913.) The department has consistently refused 
to answer hvpothetical questions or to decide what would be its action under certain 
circumstances or to make an advance decision. File 9736-54:1, J. A. G., June 17, 
1915; C. M. O. 22, 1915, 8. See also File 9736-12; 26287-1776; 26504-195; 27231-66:2, 
J. A. G., Oct. 21, 1915; 9736-fi8, J. A. G., June 19, 1916; 26504-197:1, J. A. G., Mar. 16, 
1914; 26510-221, J. A. G., Sept. 25, 1916; 3157-03, Apr. 6, 1903; 23, J. A. G.,89. 

2. Evidence— Since the data to be assumed as the basis are those which it is expected or 

claimed the jury will subsequently adopt as true, it would be both wastefid of time and 
misleading to assume data which there is not a fair chance the jury will accept; and 
a limitation for this purpose is accepted by all courts. The phrasing differs; usually 
it is said that there must be "some evidence tending to prove" them; or, that they 
must be "within the possible or probable range of the evidence;" or that they must 
concern facts which "the jury might legitimately find upon the evidence." 

An hypothetical question is supposed to be an accurate synopsis of the testimony 
that has already been sworn to by the various witnesses who have preceded the 
appearance of the witness to whom such a question is propounded. It would there- 
fore appear that the hypothetical question and the answer thereto can not properly 
be considered as evidence in this case. C. M. O. 7, 1911, 16. 

3. Same— In putting a hypothetical question, facts may be assumed which there is evi- 

dence on either side tending to establish; but this rule requires that the facts embraced 
in the hypotheses must be within the confines of the evidence; otherwise the opinion 
of the witness will be inadmissible. (Benjamin v. Metropolitan St. R. Co., 50 Mo. 
App., 602.) "Hypothetical questions are allowed to be put to experts, but the hy- 



HYPOTHETICAL QUESTIONS. 283 

potheses upon which they are examined must be based upon facts admitted or es- 
tablished by the evidence, or which, If controverted, the jury might legitimately 
find on weighing the evidence. Purely imaginary or abstract questions, assuming 
facts or theories for which there is no foundation in the evidence are not admissible 
as matter of right." (People v. Augsbert, 97 N. Y., 501.) It is well settled that an 
opinion can not be based on a state of facts of which there is no evidence. This, 
however, does not mean that the facts upon which the opinion of an expert is sought 
must be proved. It is sufficient if there is evidence tending to establish the facts. 
Then the jury must determine whether the evidence submitted proves the facts upon 
which the opinion is based. (Hurst v. Chicago, etc., R. Co., 49 La., 76; see also State 
v. Mianni, 20 Ann. Cas., 205 and note; 6 Dec. Dig., pp. 627, 628, sec. 481, 1.) The 
reason for the rule which limits hypothetical questions to facts actually in evidence 
is to avoid the opportunity which otherwise would be offered to the ingenuity of 
counsel to frame questions so as to suggest a state of facts favorable to his case but 
wholly unsupported by evidence. In the present case the witness had not qualified 
as an expert, and his testimony related only to facts personally observed by him and 
which might as well have been testified to by any other person who was present at 
the time. " On cross-examination such abstract or theoretical questions, not founded 
upon the facts of the case on trial, may be put for the purpose of testing the knowledge 
and information of the witness as to the subject upon which he has been examined 
and his competency to give the opinion which he may have pronounced on his direct 
examination." (People v. Augsbert, 97 N. Y. 501). Such questions, however, when 
introducing supposititious statements, must not purport to be based upon the facts 
of the case on trial, being objectionable for the same reasons as above stated. CM. O. 
5, 1913, 7-8. See also Expert Witnesses, 13 (p. 234). 

4. Same— The precedents of the department are clear that hypothetical questions should 

be based on facts in evidence. (C. M. O. 7, 1911, pp. 15-16; 5, 1913, pp. 7-8; 24, 1914, 20; 
51, 1914, 8; Index-Digest, 1914, p. 23.) C. M. O. 49, 1915, 12, 14. 

5. Form of letter. See File 26504-197:1, Sec. Navy, Mar. 16, 1914. 

1-4893. See Naval Instructions, 1913, 1-4893. 

IDEALS. C. M. 0. 14. 1915, 1; 17, 1915, 3. See also Officers, 62. 

IDENTITY OF ACCUSED. 

1. Fraudulent enlistment— Essential in proving fraudulent enlistment. See Fraudu- 
lent Enlistment, 51. 

IDIOCY. See C. M. O. 16, 1916, 8; Insanity, 20, 35; Witnesses, 52 (p. 651). 

IDIOSYNCRASY. 

1. Death— Caused by idiosyncrasy due to anesthetic. See Line of Duty and Miscon- 
duct Construed, 63. 

IGNORANCE OF FACT. See C. M. 0. 10, 1913, 4. 

IGNORANCE OF LAW. 

1. Excuse— Everyone is presumed to know the law, and ignorance thereof furnishes no 
exemption from criminal responsibility. See Court, 87; Desertion, 77, 110; Ex- 
cuse, 3; Fraudulent Enlistment, 23. 

ILLEGAL ORDERS. See Orders. 

ILLEGAL EXAMINATIONS. 
1. Promotion— Upon illegal examination — Of no legal effect. See Commissions, 20. 

ILLEGAL SENTENCES. See Sentences. 

ILLEGALLY CONSTITUTED COURTS-MARTIAL. See Court, 37-11, 44, 47, 48. 

♦'IMMEDIATE SUPERIOR IN COMMAND." C. M. O. 30, 1916, 6-S; Summary 
Courts-Martial, 38. 

IMMIGRATION ACTS. 

1. Reference to. See File 26260-697 and 1392, J. A. G., June 29, 1911, p. 20. 

IMMORAL HABITS. 

1. Disease— Contracted by officer in consequence of his immoral habits. C. M. O. 40. 1889. 



284 IMPERSONATION. 

IMMUNITIES. 

1. Accused. See Constitutional Rights of Accused. 

2. Witnesses. See Self-Incrimination. 

IMPEACHMENT. 

1. Answers to irrelevant or collateral matters— The answers of a witness to irrele- 

vant or collateral matters is conclusive against the party asking the question, who will 
not be allowed to impeach the witness as to such answers. (Greenleaf, v. 1, 448.) 

2. Character of witnesses. See Evidence, 12-22. 

3. Court of inquiry record— As evidence to impeach testimony of a witness. See 

Courts of Inquiry, 19, 27. 

4. Degrading questions. See Self-Incrimination, 11, 12. 

5. Exceptions as to impeachment of one's own witness— A party may not impeach 

the credibility of a witness whom he calls (G. C. M. Rec. 30485. p. 610. See also 
■ C. M. O. 47, 1910, 5; G. C. M. Rec. 28652, p. 19) except (1) when the witness appears 
to be hostile to the party that calls him; (2) when the party that called him had no 
option, but was compelled to do so; and (3) when the party that called him is unduly 
surprised at the evidence elicited. (G. C. M. Rec. 28681, pp. 45-47.) 

6. Former witness sustained— A former witness may be sustained by proving general 

bad character of the impeaching witness. If impeached by proof of contradictory 
statements, he may be sustained by proof of general good character, the effect of the 
evidence to be determined by the court. 

7. Foundation for impeachment— To lay the foundation the witness may be recalled 

at any time. It is not necessary to lay the foundation when the previous statement 
was made under oath and recorded before an official lawfully empowered to administer 
an oath. C. M. O. 19, 1915, 5. See also G. C. M. Rec. 30485, pp. 125, 149, 176; Wit- 
nesses, 40. 

8. Impeaching a witness — A witness may be impeached (1) by disproving the facts 

testified to by him; (2) by proof of contradictory statements previously made by him 
as to matters relevant to his testimony and to the case: and (3) by evidence as to his 
general bad character. (G. C. M. Rec. 30485, pp. 410, 412-419.) See also C. M. O. 88, 
1895, 16; 57, 1897, 2. 

9. Same— While a witness for the defense was still on the stand and undergoing cross- 

examination the judge advocate irregularly and improperly introduced his (the 
witness's) current enlistment record, reading therefrom extracts showing previous con- 
victions by courts-martial; also a letter from the adjutant and inspector, United States 
Marine Corps, to the commanding officer of the naval prison at the navy yard, Ports- 
mouth, N. H., in reference to the change of the witness's name; all of which was done 
to discredit his testimony. 

The offenses concerning which extracts from the enlistment record were read, 
with but one exception, had nothing to do with the credibility of the witness. They 
were strictly military offenses and in no way affected his general character as to 
truthfulness. The exception is that of "Fraudulent enlistment," in which false 
swearing was involved. C. M. O. 47, 1910, 5. 

10. Procedure before contradictory statements can be proved— Before contradictory 

statements of a witness can de proved against him his attention must be called with 
as much certainty as possible to the time, place, attending circumstances, and the per- 
son to whom made. If the previous statement was in writing, it should be shown or 
read to him unless the absence of the writing is accounted for. 

11. Questions to impeaching witness— The impeaching witness may be asked as to 

his knowledge of the general character of the witness whose testimony is to be im- 
peached; as to the latter's general character; but particular transactions or opinions 
can not be inquired into except in seeking for the extent and foundation of the wit- 
ness's knowledge; as to whether he would believe the latter under oath : and, when 
desired, he may be asked as to the extent and foundation of his knowledge. These 
questions are asked only when it is attempted to impeach by evidence of general bad 
character. 

12. Relationship of witness— The state of the feelings of the witness and his relation- 

ship to the parties may always be proved for the consideration of the court. 

IMPERSONATION. 

1. Department of Justice — In cases in which persons fraudulently impersonate officers 
and enlisted men of the naval service, the Attorney General causes criminal prose- 
cutions to be instituted where the matter is brought to his attention by the Secretary 
of the Navv. File 21355. 



IMPERSONATION. 285 

2. Enlisted man— Impersonation of an enlisted man and passing worthless checks. File 

21355-27: 1, Sec. Navy, Dec. 8, 1915. 

3. Officer— Impersonation of recruiting officer. File 21355-25, J. A. G. Nov. 1, 1915. 

4. Officer, dismissed— A dismissed officer impersonated an officer. File 21355-29. 

5. Worthless checks— Civilian in Navy uniform passing worthless checks. File 21355-77, 

J. A. G., Dec. 3, 1915. 

IMPLICATION, REPEAL BY. See Statutory Construction and Interpretation, 
109. 

IMPLIED INTENT. See Embezzlement, 25; Intent, 29. 

IMPLIED PARDON. See Desertion, 41; Pardons, 44. 

IMPOSTORS. See Impersonation. 

IMPROPERLY HAZARDING THE VESSEL UNDER HIS COMMAND, IN 
CONSEQUENCE OF WHICH SHE WAS RUN UPON A SHOAL AND 
SERIOUSLY INJURED. 

1. Officer— Charged with. C. M. O. 2, 1914. 

IMPROPERLY HAZARDING A VESSEL UNDER HIS COMMAND IN CONSE- 
QUENCE OF WHICH SHE WAS SERIOUSLY INJURED. 

1. Officer— Charged with. C. M. O. 31, 1916. 

IMPROPERLY HAZARDING THE VESSEL UNDER HIS COMMAND IN CON- 
SEQUENCE OF WHICH SHE WAS RUN UPON A ROCK AND LOST. 

1. Officer— Charged with. C. M. O. 20, 1883. 

IMPROPERLY HAZARDING THE VESSEL UNDER HIS COMMAND IN CON- 
SEQUENCE OF WHICH SHE WAS RUN UPON A SHOAL AND 
SERIOUSLY INJURED. 

1. Officers— Charged with. C. M. O. 17, 1913; 26, 1916. 

IMPROPERLY HAZARDING THE VESSEL UNDER HIS COMMAND IN CON- 
SEQUENCE OF WHICH SHE WAS RUN UPON A SHOAL. 

1. Officer— Charged with. C. M. O. 32, 1913; 19, 1917. 

IMPROPERLY HAZARDING A VESSEL OF THE NAVY, IN CONSEQUENCE 
OF WHICH SHE WAS RUN UPON A SHOAL AND SERIOUSLY IN- 
JURED. 

1. Officer— Charged with. C. M. O. 27, 1916. 

IN JOINDER. See Joinder, Trial in. 

INADEQUATE SENTENCES. See Adequate Sentences. 

INCLINING EXPERIMENTS. 

1. Stability of vessel— An officer was tried by general court-martial for failing to cause 
result of inclining experiment to be determined and failing to notify commandant 
of his doubts of the stability of a ship which was sent to sea in an unsafe condition 
and was lost. C. M. O. 32, 1909. 

INCOME-TAX RETURNS. 

1. Oath. See Oaths, 24. 

INCOMPETENCY. 

1. Charges of— Against any rated person— When the offense charged is incompetency, 

it is essential to set forth the particular acts or neglect upon which the specification 
is based; and it is necessary that more than one instance of such incompetency be 
alleged. 

In the case of a person found guilty of incompetency the sentence of disrating is 
mandatory, and such sentence is the only authorized punishment therefor. Set 
File 5710, Sec. Navy, Sept. 18, 1906. 

2. Counsel. See Counsel, 37. 

INCRIMINATION. See Self-Incrimination. 



286 INDICTMENT. 

INDEBTEDNESS. See Debts. 

INDECENT ASSAULT. 

1. Paymaster's Clerk— Charged with. CM. O. 35, 1913. 

INDECENT BEHAVIOR. 

1. Officer— Charged with. C. M. O. 47, 1906. 

INDEMNITY. 

1. Chilean Dideinnity Fund. See Chilean Indemnity Fund. 

INDEX. 

1. Board of investigation. See Index, 3. 

2. Court of inquiry. See Index, 3. 

3. General court-martial— If a general court-martial case, or that of a court of inquiry, 

investigation, or board of investigation, exceeds 20 pages in length, it shall be 
preceded by an index showing upon what page each step of the trial and of the 
examination of the several witnesses, giving their names, may be found; also, in 
case a witness corrects his testimony, the pages where such correction is referred to 
and where made. Forms of Procedure, 1910, p. 10. See also C. M. O. 7, 1911, p. 13; 
8, 1911, p. 4; 21, 1912, p. 4; 28, 1912, p. 3; 36, 1914, p. 6; 20, 1915, p. 5; G. C. M. Rec. 
30485. 

4. Insanity — Claim that the preparation of an index by a naval officer caused insanity 

and suicide. See Index, 8. 

5. Interspersed throughout record— The judge advocate of a general court-martial of 

an officer was criticized by the department for not arranging the index properly. 
The department stated: "The index was interspersed throughout the record, pre- 
ceding the record of each day's proceedings, thus being of little value as an index." 
C. M. O. 20, 1915, 5. 

6. Precede case — In reviewing the records of proceedings of several general courts-martial 

the department observed that the index was placed after the charges and specifica- 
tions instead of preceding the case. The index should precede the case and there- 
fore be the first paper beneath the cover. Forms of Procedure, 1910, p. 10.) C. M. O. 
36, 1914, 6. 

7. Returned for revision — Record was returned to the court because of the failure to 

index the record as required by Forms of Procedure, 1910, p. 10. 

8. Suicide — Claim that the preparation of an index caused insanity which led to suicide. 

File 26250-230: 24, J. A. G. June 28, 1913. 

INDIANS. 

1. Annuity — Authority of commanding officer to administer oath for an Indian to make 

application for an annuity or any other sum due him. See Oaths, 38. 

2. Clemency— Extended because accused was an American Indian. In view of the fact 

that the accused was a full-blooded American Indian and under the conditions at 
the time of the commission of his offense did not appreciate the full gravity of his 
acts, the department mitigated the sentence. C. M. O. 114, 1903, 4. 

3. Enlistment of —An Indian who belonged to the Seneca Nation in the State of New York 

is prima facie not a citizen of the United States, and should be required to establish 
his citizenship by satisfactory evidence when he applies for enlistment in the Navy. 
Suggested, however, as there is no law making citizenship a condition precedent to 
enlistment, the Navy Department is authorized to enlist such Indians, regardless 
of citizenship, if considered desirable, this being a matter of departmental regulation. 
File 9212-48, Aug. 3, 1914. 

4. Medical Reserve Corps of the Navy — An Indian born in Indian Territory and who 

had resided in Oklahoma after its admission as a State was held to be a citizen of the 
United States by virtue of the various acts of Congress, and accordingly eligible, if 
otherwise qualified, for appointment as an assistant surgeon in the Medical Reserve 
Corps of the Navy. File 26252-99, May, 1915. 

INDIAN HEAD. 

1. Jurisdiction. See Jurisdiction, 83,84. 

INDICTMENT. 

1. Certified copy of. -See also Civil Authorities, 16. 

2. Common law indictment. C. M. O. 23, 1911, 5. See also Manslaughter, 13. 



INDICTMENT. 287 

3. No existence in naval service— Counsel for .accused, in argument, repeatedly referred 

to summary court-martial specifications before the court as an "indictment," thus 
falling into an error scarcely to be expected of a naval officer appearing as counsel 
before a military court— indictment, as expressly recognized by the Constitution of 
the United States, having no existence in cases arising in the land and naval forces. 
File 26287-3475, Sec. Navy, July 5, 1916. See also Record of Proceedings, 31. 

4. Presentment and indictment— By grand jury. See Constitutional Rights of 

Accused, 13. 

INDORSEMENTS. 

1. Adjutant and inspector, U.S.M.C.— Indorsement on letter of, as evidence. CM. O. 

47, 1910, 5. See also Letters, 4, 5. 

2. Bureau of Navigation— As evidence. C. M. O. 49, 1910, 10. 

3. Same— Published in Court-Martial Orders. See Bureau of Navigation, 1. 

4. Commanding officer, Presidio, San Francisco. C. M. O. 49, 1910, 10. 

5. Letter— Indorsement on letter to show previous conviction. See Previous Con- 

victions, 15. 

6. Same— Indorsement on letter as evidence. C. M. O. 47, 1910, 4. 

INEFFICIENCY. See C. M. O. 129, 1898, 6. 

" INEVITABLE ACCIDENT." 

1. Collision — As a defense in a collision. See Collision, 12, 17. 

INEXPERIENCE. 

1. Clemency — Members of court-martial recommended accused to clemency because of 
inexperience. See Clemency, 27. 

INFANTS. See Minors. 

INK ERADICATOR. 

1. Use of— Prohibited in Bureau of Supplies and Accounts. File 22590; S. & A. File 99550; 
66 S. & A. Memo. 154. 

INQUESTS. 

1. Autopsy. See Autopsy. 

2. Boards of inquest. See Boards of Inquest. 

3. Confession. See Confessions, 10. 

4. Coroners. See Confessions, 10. 

5. Evidence — Coroner's inquest record. See Confessions, 10. 

6. Naval reservation— Right of coroners to hold an inquest in. File 1766-03; 3726-97; 

7101. See also Jurisdiction, 22-24. 

INSANITY. 

1. Absence from station and duty without leave — Court should not find specifica- 

tion proved but not guilty of charge— From a review of the case of an officer tried In- 
general court-martial on the charge of "Absence from station and duty without 
leave," the offense alleging an absence after expiration of leave of about three days, 
it is noted that the court found the specification proved but the accused not guilty 
of the charge. 

The defense offered in this case was that the accused was irresponsible for his 
actions on account of mental disorder, and the court apparently accepted this condi- 
tion as relieving him of responsibility in connection with the "offense charged. 

It might be remarked that a more proper finding on the specification would have 
been "proved but without, culpability (or criminality)." C. M. O. 23, 1910, 7. But 
see Findings, 44, 69, 70. 

2. Acquitted— Because of. C. M. O. 42, 1909, 12. Sec also Insanity, 1. 

3. Clemency— Extended to accused because among other things •Mho infractions of the 

law and Navy Regulations took place when the accused was under unusual mental 
strain." CM. O. 30, 1905, 1, 

4. Same— The accused was found guilty and sentenced. The recommendation to clem- 

ency indicated that the members had some doubt as to the sound mental condition 
of the accused, in consequence of which a board of medical officers was directed \o 
inquire into his physical and mental condition. In view of the report of the board 
and further reports no action was t aken on the record, but the accused w as discharged 
from the naval service. C. M. O. 86, 1901. 

50756°— 17 19 



288 INSANITY. 

<; qjune-A recommendation to clemency read in part: "It appears to us probable that 

S TetoMmono?the accused on December 30, 1907, was at feast in part due to mental 

disturbance although also in part due to alcoholic stimulant." C M. O. 3, 1908, 1. 

6 Same^\?epo?t of a medical board ordered to examine into the mental condition of 

thTaccused reported in part as follows: He "is of feeble, untrained mind, and evi- 
dently ?s d^St In will power," and the clemency was accordingly extended by 

7 cimlSSK™^^n a^d^ecomes insane after conviction, judgment can 
• C °nTbe giVen o S r sentence pronounced so long as he is in such condition; nor can he be 

executed if he becomes insane after udgment and sentence. C. M O. 24, 1914, 4. 

8 Defmse-To establish a defense on the ground of insanity, it must be clearly proved 

thit at the time of the committing of the act, the party accused was laboring under 
such a defect of reason, from disease of the mind, as not to know the nature and quality 
of the fact he .was doing; or, if he did know it, that he did not know he was doing what 

9 DeflStfon-"&\?mi 4 ''hSatfc> 'insane,' 'of unsound mind,' and 'non compos 
9 ' mS&Fare convertible and generic terms, and include aU the specific forms >of mental 

disease recognized by the text writers and medical authorities." (22 Cyc, 1110.) 

C. M. 0.24, 1914,3. 
10. Delusion, insane. See C. U.O. 24 1914 9. 

n Drunkenness—Resulting in insanity. See Assault, 17. ,....,. , , 
12! Dying Tdeclarltion-An insane person can not make an admissible dying declara- 

tion See Dying Declarations, 1. . , 

13 Excuse-The law does not excuse criminal acts committed under the impulse of an 

appetite or passion which, by long indulgence, has acquired mastery over the accused. 

CM. 0.24, 1914, 15. 
It 5£ffiSffi?V5S£SSS£»lt, as a defease. See Clemency, 36; Fadings, 
tt G^Srl^Bo^Lft^^l^^Ano^ces for prisoners and patients at. 

Sep Ctovernment Hospital fob the Insane, 2. 

17. Same-AlfotmSs-By patients at. See Government : Hospital for ™e^nsane . 

18. Same— Discharge of insane prisoners at. See File 26251-4927, G. C. M. Kec. 2381/. 

19 Hflf-wUted-nthJaccused was half-witted and irresponsible at the time of his trial, 
he was not competent to conduct his defense, and upon the court arriving at such 
a conchSon it Ke its duty to suspend the proceedings in the case and inform the 
dSartment of ite opinion in the matter, in which case, if the circumstances war- 
rantS a medical survey would have been ordered to determme his condition. 
C. M. O. 49, 1910, 17; 24, 1914, 5. 

20. Idiocy. See C. M. 0. 16, 1916, 8; Insanity, 35; Witnesses, 52. 

21. Indexing— As a cause of insanity and suicide. See Index, 8. . ^„.., 
22 Irresistible impulse— Is not a defense to crime where accused had mental capacity 

to ^dfstin^^hTetween right and wrong, and to know that the particular act charged 
was wrong. The law does not excuse criminal acts committed under the impulse 
of an appetite or passion which, by long indulgence, has acquired mastery over the 
accused. C. M. O. 24, 1914, 1. See also C. M. O. 51, 1914, 4. 

24* Medicaf test- Oan^oTbe adopted if society is to be protected against crime. Medical 
science would acquit by the wholesale criminals who did not resist 'impulses _ which 
they well knew were wrong. The department has no intention of encouraging any 
such theories. No such doctrine is recognized as law by ^he Federal ^courts ; nor by 
the weight of authority in the State courts. C. M. O. 24, 1914, 8, 19. See also C. M. O. 
51, 1914, 4. 

25. Mental strain. See Insanity, 1, 3. 

26. Mentally incapacitated. See Clemency, 36. See also Insanity, I, 5 ,b, £i. 

27. Mental irresponsibility-If intended to mean ' 'insane "courts-martial should .use 

the latter expression, which in law includes all the specific forms of mental disease 
recognized by text writers and medical authorities. C. M. O. 24, 1914, i, s. 

28. Mentally unbalanced. See Insanity, 1, 5, 6, 27. 

29. Moral obliquity. See Insanity, 37. 

30. Non compos mentis. See Insanity, 9. 

31. Partial insanity. See C. M. O. 24, 1914, 9, 17. 



INSANITY. 289 

32. Procedure— If the court is of the opinion that accused is insane during trial, its duty 

is to suspend proceedings and inform convening authority of its opinion, in order 
that, if the circumstances warrant, a board of medical survey may be ordered. When, 
instead of doing this, the court proceeds with the trial and records findings on the 
charges and specifications, it is the duty of the convening authority to decline to accept 
the court's findings; and the record should be returned to the court in order that such 
findings may be revoked, as there has been no legal trial, the accused has not been 
placed in jeopardy, and the status of his case is the same as though he had never been 
arraigned. C. M. 0. 24, 1914, 1. Seealso C. M. 0. 42, 1909, 13; 117, 1902, 9; Insanity, 41. 

33. Rape— Insanity as defense to. See C. M. O. 24, 1914, 16. 

34. Resignation— Of an officer. See Resignations, 13. 

35. " Right and wrong " test— Rule for determining criminal responsibility in law— 

If a person is incapable, because of idiocy or insanity, of distinguishing between 
right and wrong as to a particular act at the time he commits it, he is not to be held 
criminally responsible therefor. C. M. O. 24, 1914, 8; 51, 1914, 4. See also Responsi- 
bility fob Crime, 1. 

36. Same— Legal test — "Right and wrong" test is the test of criminal responsibility laid 

down by Federal courts, has been adopted by the department, and should be applied 
by naval courts-martial. C. M. O. 24, 1914, 16; 51, 1914, 4. 

37. Sentence — Confirmed— The following is the confirmation of the President indorsed 

thereon: 

"White House, 
" November 26, 1902. 

"The sentence in the case of Ensign '* * *' U. S. Navy, is hereby confirmed. 

«* * *_" 

Subsequently to the action taken as above stated, in the case of Ensign * * *, 
U. S. Navy, the question having been raised as to his mental condition, the matter 
was referred to a board of medical officers, which found as follows: 

"The board finds that there is evidence of moral obliquity associated with a lack 
of mental appreciation of the gravity of his acts." 

The report of the board was duly submitted to the President, who, under date 
of the 11th instant, directed that the sentence of the general court-martial in this 
case be carried into effect. Ensign * * * IT. S. Navy, has accordingly to-day 
been dismissed from the naval service of the United States. C. M. O. 230, 1902. 

38. Same— Disapproved because of mental condition of accused— Accused charged with 

" Desertion," found guilty of "Absence from station and duty without leave." Rec- 
ommended for clemency because of the evidence "showing some doubt as to his 
mental condition." 

Department approved the proceedings but disapproved the findings and sentence 
of dismissal, stating in part, "In view of the recommendation to clemency signed 
by a majority of the court showing that there was a doubt as to the mental condition 
of the accused during his absence without leave, and as, from a careful review of the 
evidence adduced, this doubt seems to be a reasonable one, the court should, in mv 
opinion, have found the accused not guilty." C. M. O. 80, 1907. See also Insanity, 
32, 41, for correct procedure. 

39. Same— But in view of the unanimous recommendation of the members of the court 

that the sentence be remitted for the reason that, in their opinion, the accused 
(officer) was, at the time the offense was committed, irresponsible for his acts, 
because of his physical and mental condition, the sentence was remitted. C. M. O. 
56, 1889, 2. Sec Insanity, 32, 41, for correct procedure. 

40. Suicide— Caused by insanity. See Index, S; Line of Duty and Misconduct Con- 

strued, 89, 91,96. 

41. Trial— Insane at time of trial— Procedure— If the court, after hearing the testimony 

of the doctor, entertained only a doubt as to (ho sanity of the accused at the time 
he committed the offense, or if the testimony had conclusively shown thai the 
accused was insane at the lime of his trial, in which event he would not have been 
competent to conduct his defense, the proper procedure would have been to have 
suspended the proceedings, reported the facts as found to the department, and, if 
the circumstances warranted, a medical survey would then have been directed 
C. M. O. 42, 1909, 13. See also Insanity, 32. 



290 INSANITY. 

42. "Unsound mind." See Insanity, 9. 

43. "Untrained mind." See Insanity, 6. 

44. Weak-minded. Sec Insanity, 6. 

45. Will power— Deficient in. See Insanity, 6. 

INSIGNIA OF RANK STRIPPED OFF. See C. M. O. 7, 1888, 1. 

INSPECTOR OF MACHINERY. 

1. Neglect of duty of. C. M. O. 41, 1915. See also Bureau of Steam Engineering, 1. 

INSTRUCTIONS FOR RECRUITING OFFICERS OF THE UNITED STATES 

NAVY. See C. M. O. 12, 1911, 4; Fraudulent Enlistment, 78. 

INSTRUCTIONS OF DEPARTMENT. 

1. Court-martial orders, in— Are in such easily accessible form that ignorance of or 
inattention to them are inexcusable. See Court-Martial Orders, 8. 

INSUBORDINATE CONDUCT TO THE PREJUDICE OF GOOD ORDER AND 
DISCD?LINE. 

1. Officer— Charged with. C. M. O. 6, 1883. 

INSUBORDINATION. 

1. Enlisted men— Charged with. C. M. O. 35, 1893; 78, 1893. 

2. Punishment for. C. M. O. 49, 1915, 17, 19. 

INSULAR AUTHORITIES. 

1. Arrests— Upon naval territory by. See Arrest, 20: Jurisdiction, 11, 94, 106, 108. 

2. San Juan, P. R.— Arrest by service of process. See Jurisdiction, 108. 

INSURANCE COMPANY. 

1. Blanks— Signing of by medical officers. See Medical Records, 5. ■ 

INTENT. 

1. Absence from station and duty without leave — With intent to desert should be 

charged as desertion. C. M. . 23, 1910, 6. 

2. Absence, unauthorized— Whether absence without leave is of that class of statutory 

offenses where intent is immaterial is apparently settled, for it has been held by the 
department (file 26251-3252, Apr. 28, 1910; 26251-4200, Jan. 25, 1911) that— 

"Where * * * it appears that the accused 'was fully conscious of what he was 
doing, in the full possession of his reason, and not acting ignorantly or by mistake' 
of fact the general criminal intent necessary to conviction is clearly established." 

And also (file 26251-4200, Jan. 25, 1911) that— 

"Upon a chargelike that of absence without leave, where it is not necessary to allege 
or prove any specific intent, it may very well happen that allthefacts alleged in the 
specification may be found proved, and yet the accused be wholly free from blame; 
the absence, for example, being entirely involuntary on his part.'' 

The offense of absence over leave, therefore, is one in which no specific intent is 
required to be shown, but that upon proof of the commission of the act the general 
intent usually necessary in criminal offenses is presumed. The question here recurs 
whether this statutory offense is one to which no defense may be interposed beyond 
denial of the commission of the act charged; whether, for example, the man was 
engaged in some lawful pursuit while on liberty and while so engaged was placed in 
such a position or condition not the result of any wrongful or unlawful act of his own 
volition, whereby he is rendered incapable of returning to his vessel or station at the 
expiration of his authorized liberty. Under such circumstances can he introduce 
evidence of the facts and be found "not guilty," or must the proof of such facts merely 
be considered by the reviewing authorities in deciding whether or not clemency may 
be extended. 

If the Articles for the Government of the Navy be examined, many acts and neglects 
will be found which are made punishable where only a general intent is necessary; 
that is, where merely doing the act or omitting to so some duty constitutes the offense, 
the presumption of a general wrongful intent being raised by proof of such act or 
omission. Some of these are "Sleeping upon watch," "Leaving his station before 
being regularly relieved," "Profane swearing," etc., "Negligent or careless in obeying 
orders," "Violating or refusing obedience to any lawful general order," etc., "Suffering 
a vessel of the Navy to be stranded," and many others. 



INTENT. 291 

If, as suggested by the remarks of the reviewing authorities, proof of the mere act 
or neglect is all that is necessary to render the accused amenable to punishment, and 
that proof of exculpatory facts should only be made the basis of a recommendation 
to clemency, then it could very possibly happen in some cases that the reviewing 
authority might not, for any one of various possible reasons, feel inclined to exercise 
clemency, with the result that the accused would be punished for something for which 
he was really excusable. That such view, as above stated, can not be the proper 
one and that matters of defense may properly be considered in deciding whether the 
accused is guilty or innocent, in contemplation of law, the following from Felton v. 
United States (97 U. S., 699, 703) may be quoted: 

"The law * * * is not so unreasonable as to attach culpability, and conse- 
quently to impose punishment, where there is no intention to evade its provisions, 
and the usual means to comply with them are adopted. All positive legislation 
contemplates some relation between guilt and punishment. To inflict the latter 
where the former does not exist would shock the sense of justice of everyone." Fur- 
thermore, absence without leave in the Army is forbidden and made punishable 
by the thirty-second Article of War, which reads as follows: 

"Any soldier who absents himself from his troop, battery, company, or detach- 
ment, without leave from his commanding officer, shall be punished as a court-martial 
may direct." 

This is a statutory offense likewise, and yet as to matters of defense thereto, Win- 
throp, in his Military Law and Precedents (2d ed., p. 939), says: 

"It will be a good defense that the party, while absent on pass or furlough, was 
prevented from returning at the proper time by sickness or other disability, but to 
establish this excuse medical testimony will generally be required. That the accused 
was involuntarily detained by the force of the elements, the action of the civil authori- 
ties, the operations of the enemy, or by being taken prisoner by the latter, may also 
constitute a valid defense; but where he has once deliberately absented himself with- 
out authority, the fact that he was detained away longer than he had intended by 
some agency beyond his control, will be no sufficient answer to the accusation." 

Referring to the same offense, O'Brien, in American Military Law and Courts- 
Martial (p. 92), says: 

"It is, of course, open to the accused to show by evidence, the causes of his length- 
ened absence, and if he can satisfy the court that he was innocent of a criminal inten- 
tion, but unavoidably prevented, in spite of his efforts, from returning at the 
appointed time, he must be acquitted. 

"Though the prosecution may, if possible, negative this excuse by counter- 
testimony, it can never produce in aggravation of the crime charged, any misconduct, 
etc. ; committed during the unauthorized absence. If such matters are to be brought 
against the accused, they must come under separate charges, the accused being held 
accountable only for the specific acts alleged against him." 

For an absence over leave to be excusable it must have been in some lawful manner 
unavoidable. 

Furthermore, section 879 of the Revised Statutes of the United States provides 
that a Federal court may, in criminal cases of which it has jurisdiction, "require of 
any witness produced against the prisoner, on pain of imprisonment, a recognizance, 

And section 881, Revised Statutes, provides that in case of a necessary witness on 
a trial in which the United States are parties, etc., the court may compel such wit- 
ness to give a recognizance to appear and testify, and may arrest the witness for that 
purpose, and further provides that— 

"If the person so arrested neglects or refuses to give recognizance in the manner 
required, the judge may issue a warrant of commitment against him, and the officer 
shall convey him to the prison mentioned therein. ' And the said person shall remain 
in confinement until he is removed to the court for the purpose of giving his testi- 
mony, or until he gives the recognizance required by said Judge. " 

The State laws also very generally, and probably universally, provide that neces- 
sary witnesses in criminal cases may be required to give a recognizance, with sure! ies. 
to secure their attendance at the trial, in default, of which they may be commit ted to 
jail. 

If any person belonging t o the naval serv ice is lawfully on shore on leave of absence 
or on liberty and, without, any fault whatever on his part, should be a witness to 
some occurrence for which he could be held by the civil authorities, under authority 



292 INTENT. 

of law as above shown, it would be manifestly a legal excuse, and the presentation of 
proper evidence as to the reason for his detention on shore should be sufficient before 
a court-martial to secure his acquittal of a charge of absence over leave. 

As an example of what might very possibly occur to persons in the service, as well 
as to others, the following instance is quoted from the Review (vol. 1, No. 8; August, 
1911), a monthly periodical published by the National Prisoners' Aid Association 
(p. 13): 

"In Springfield some time ago one Giuseppi Ferreri was charged with murder. 
Two witnesses of the crime alleged, Antonio and Joseph Galetto, were held as wit- 
nesses. To assure their uresence at the time of trial, these two witnesses were required 
to furnish bonds in SI. 000. Being poor, they were unable to do this and are now 
languishing in jail. There they will stay for months, perhaps, separated from their 
families and friends, and denied the privilege of earning a living. 

"What has happened to these two men is likely to happen to anybody. They 
are in jail not because thev committed a crime, but because they are supposed to 
have seen one committed. h C. M. O. 5, 1912, 4-14. See also C. M. O. 10, 1911, 6; 
Absence from Station and Duty without Leave, 20. 

3. Assault— Specific intent not necessary in simple assault. See Assault, 23. 

4. Same — Drunkenness. See Assault, 17, 18; Drunkenness, 7-9; Intent, 5, 42. 

5. Assault and battery— Specific intent need not be alleged in assault (and battery) 

the general criminal intent to commit the act being presumed. Evidence of drunk- 
enness is inadmissible as a defense, except in cases where specific intent is necessary 
(robbery, perjury, forgery, burglary, larceny (theft), etc.) C. M. 0. 8, 1911, 4-6. See 
also Assault, 18. 

6. Assault, willful and malicious — Drunkenness is a defense in so far as it affects the 

capacity of the accused to form the necessary specific intent. C. M. O. 47, 1910, 8. 

7. Assault with intent to kill. See Assault, 17. 

8. Assaulting and wounding— No specific intent necessary. See Assault, 18. 

9. Assaulting with a deadly weapon and wounding another person in the serv- 

ice. See Assault, 17. 

10. Burglary— Specific intent necessary. See Burglary, 3, 6; Intent, 2, 5, 49. 

11. Carelessly — As expressing intent. See Charges and Specifications, 52. 

12. Carelessness — A general principle, recognized in all authorities, is that there may be 

such character of negligence or carelessness as will take the place of criminal intent. 
C. M. O. 4, 1914, 10. 

13. Charges, and specifications— In cases where law has adopted certain expressions to 

show intent, etc. See Charges and Specifications, 52; Intent. 33. 

14. Conduct to the prejudice of good order and discipline. C. M. O. 42, 1909. 10. 

15. Constructive intent. See C. M. O. 23, 1911, 5. See also Manslaughter, 12. 

16. Corruptly— Expressing intent. See Charges and Specifications, 52. 

17. Criminal intent. See Desertion, 77 (p. 175); Embezzlement; Intent, 51. 

18. Desertion. See Desertion. 

19. Drunkenness — As affecting the intent. (Roberts v. People, 19 Mich. 401.) See 

Assault, 15-19; Burglary, 3; Drunkenness, 12, 20, 22, 49-52, 89; Intent, 42; 
Statement of Accused, 16. 

20. Embezzlement. See Embezzlement, 15, 16. 

21. Enlistment record— To prove specific intent in desertion. See Service Records, 

10-14, 16. 

22. "Feloniously"— Intent alleged by use of word "feloniously." C. M. O. 42, 1909, 9-10. 

See also Assault, 13, 14; Feloniously; Intent, 50. 

23. Forgery— Specific intent required. See Intent, 5, 42, 49. 

24. Fraudulent enlistment— Intent to fraudulently enlist as affected by typhoid fever. 

See Fraudulent Enlistment, 27. 

25. Fraudulent intent. C. M. O. 37, 1883, 6. See C. M. O. 4, 1914, 4, for "intent to 

defraud." 

26. General intent — Distinguished from specific intent. See Intent, 49. 

27. Same — Simple assault. See Assault, 15, 16. 

28. Implied by negligence. See Embezzlement, 18. 

29. Implied intent. See C. M. O. 23, 1911, 5. See also Manslaughter, 12. 

30. Inference— Intent is inferred from act. See Intent, 49. 

31. "Intentionally"— As expressing intent. See Charges and Specifications, 52. 

32. Kill— Intent to kill. See Assault, 17. 



INTENT. 293 

33. "Knowingly" — In cases where the law has adopted certain expressions to show the 

intent with which an offense is committed, the intent shall be expressed by the 
technical word prescribed. For example, a charge made against an officer for making 
or for signing a false muster must be laid to have been done "knowingly." See 
Charges and Specifications, 52. 

34. Language— Intent of language. See Language, 2. 

35. Larceny. See Drunkennesl, 49; Intent, 5, 42, 49; Theft, 9. 

36. "Leaving his station before being regularly relieved"— Specific intent not neces- 

sary. See Intent, 2. 

37. " Maliciously "—Intent expressed by. See Charges and Specifications, 52. 

38. Murder. See Drunkenness, 22; Murder 6, 13. 

39. Natural and necessary consequences — Every man of sound mind is assumed to 

intend the natural and necessary consequences of his own deliberate acts. See 
Acts, 3. 

40. Neglect or careless in obeying orders, etc. — Specific intent not necessary. See 

Intent, 2. 

41. Perjury — Specific intent required. See Intent, 5, 42, 49. 

42. Presumption from acts — The accused was tried by general court-martial (station 

case) on the charge of "Assaulting with a deadly weapon and wounding another 
person in the service," the specification thereunder alleging that the accused did 
"willfully, maliciously and feloniously and without justifiable cause assault, and 
cut with a knife" another person in the service. 

The charge in this case is based upon the third clause of article 8 of the Articles 
for the Government of the Navy, which reads as follows: 

"Such punishment as a court-martial may adjudge may be inflicted on any person 
in the Navy * * * 

"3. Or quarrels with, strikes, assaults, or uses provoking, or reproachful words, 
gestures, or menaces toward any person in the Navy." 

Under the foregoing it is not necessary to allege that the act was done with any 
specific intent, and in the case of United States v. Gallagher (2 Paine 447; Fed. Cas. 
No. 15, 185), which was a case of assault with a dangerous weapon, the court held 
that it was not necessary to charge that the assault was committed feloniously, or 
with intent to commit a felony. 

In this case, therefore, the general criminal intent was presumed, and the intoxi- 
cation of the accused furnished no excuse for the natural and probable consequences 
of his act. 

" The condition of the prisoner's mind not being an element of the offense of assault 
and battery, evidence of the intoxication at the time of the alleged offense is not 
admissible." (A. & E. Enc, v. 17, p. 412.) 

"When a person voluntarily drinks, and becomes intoxicated, and while in such 
a condition, commits an act which would be a crime if he weresober, he is nevertheless 
responsible, the settled rule being that voluntary drunkenness is no excuse. A 
person may be so drunk when he commits an act that he is incapable, at the time, 
of knowing what he is doing; but in case of voluntary intoxication a man is not the 
less responsible for the reasonable exercise of his understanding, memory, and will. 
A drunken man, equally with a sober man, is presumed to intend his acts, and the 
natural and ordinary consequences." 

Exceptions to the foregoing principle arise when a specific intent to injure or to 
do other wrong is necessary to constitute the act charged, as in burglarv, forgery, 
perjury, and in larceny and robbery where a specific intent to steal the goods Taken 
is necessary. But there is no such necessary specificintent in an assault and battery . 

"If injury would be the natural consequence of the overt act on the part of the 
aggressor, an unlawful intent is presumed, unless such presumption is repelled by 
the evidence." (A. & E. Enc, v. 2, p. 954.) C. M. O. 8, 1911, 5. See also Assault 23. 

43. "Profane swearing," etc.— Specific intent not necessary. -See Intent, 2. 

44. Rape. See Intent, 49. 

45. Resisting arrest. C. M. O. 23, 1910, 6. See also Resisting Arrest. 

46. Seditious words. See Intent, 57; Sedition. 

47. Service records.— Proof of specific intent to desert. See Service Records. 

48. " Sleeping on watch "—No specific intent necessary. Sec Intknt. 2. 

49. Specific and general intent distinguished— As to general intent: 

"A presumption of a criminal intention may arise from proof of the commission 
of an unlawful act. The general rule is that it'it is proved that the accused committed 
the unlawful act charged it will be presumed that the act was done with 8 criminal 
intention, and it is for the accused to rebut this presumption." (12 Cyc 162.) 



294 INTENT. 

" When the proof shows that the unlawful act was done, the law presumes the intent, 
and the proof of the act, that being in itself a violation of the law, is the proof of the 
intent. So that if these defendants are shown by the evidence to have done acts which 
in themselves are violations of law, the law presumes the intent and the jury need 
not look beyond the proof of the unlawful act for proof of an intent to violate the law." 
(U. S. v. Baldridge, 11 Fed. Rep. 552, 554.) 

The foregoing fairly describes what the law means when it speaks of a general intent. 
As to a specific intent, the rule abovestated is different. As set forth in 12 Cyc. 152. 

"The rule, however, does not apply in the cases of crimes like burglary, assault with 
intent to kill, or rape, etc., for which a specific intent is necessary. Here the burden 
is on the State to prove, by either direct or circumstantial evidence, that the act was 
done with the requisite specific intent. But it is sufficient in such cases to prove 
facts from which the specific intent may be inferred." (12 Cyc. 152.) 

Thus, in robbery and in larceny, the specific intent is to deprive the owner of his 
property; in burglary, it is to commit some felony, after breaking and entering the 
dwelling house of another in the nighttime; in the military offense of desertion, it is 
the intent to abandon the service or the pending contract of enlistment; and in all 
such cases the specific intent must be proved, either directly or circumstantially. 
C. M. O. 5, 1912, 8-9. See also Desertion, 77 (p. 175). 

50. Statutory intent — "As a general rule, where an act is prohibited and made punish- 

able by statute, the statute is to be construed in the light of the common law, and the 
existence of a criminal intent is essential. The legislature, however, may forbid the 
doing of an act and make its commission criminal without regard to the intent of the 
doer, and if such an intention appears the courts must give it effect though the in- 
tention may have been innocent. Whether or not in a given case a statute is to be so 
construed is to be determined by the court by considering the subject matter of the 
prohibition as well as the language of the statute and thus ascertaining the intention 
of the legislature." (12 Cyc. 148.) 

"The legislature may enact laws for the mere violation of which, irrespective of 
the criminal intent, penalties are attached; as for selling liquors to minors, selling adul- 
terated food and drugs, allowing minors to frequent saloons, changing and obstruct- 
ing public roads, maintaining a nuisance, disposing of mortgaged property." 
(8 A. and E. Enc. L. 291.) 

"There are many instances where an act may be criminal in its character without 
there being a criminal intent. Gross carelessness by which a person may be injured 
or killed, while it may reduce the offense from murder to manslaughter, or modify the 
penalty, does not wholly relieve the person guilty of it from criminal responsibility. 
Governments, both national and State, and even municipal, make laws for protection 
against articles such as powder or glycerine from accidents resulting from negligence 
where no intention exists to cause an injury. If persons violate those laws they 
become liable to the penalty prescribed, because the necessity for strict care and 
caution in regard to such dangerous substances requires that carelessness in regard 
thereto, from which damage might result, should be punished notwithstanding there 
may be an absence of any criminal or felonious intent." (In re McCoy, 127 U. S. 731, 
754.) 

"While intent is in a certain sense essential to the commission of a crime, and in 
some classes of cases it is necessary to show moral turpitude in order to make out a 
crime, there is a class of cases within which we think the one under consideration 
falls where purposely doing a thing prohibited by statute may amount to an offense, 
although the act does not involve turpitude or moral wrong." (Armour Packing 
Co. V. U. S., 209 U. S. 56, 85, 86.) C. M. O. 5, 1912, 7-8. 

51. Same— Criminal intent is the intention to do the act charged and not the intention of 

violating the law— "There is nothing at all unusual in a man's wilfully and de- 
liberately doing the acts in violation of laws of which he is ignorant. The court is 
not supposed to investigate and determine whether or not the accused knew the law, 
the only question being whether he willfully and deliberately did the acts with which 
he is charged. As plainly stated * * * in Court-Martial Order No. 4, 1913, it is 
the intention to do the act charged and not the intention of violating the law which 
constitutes criminal intent." (G. C. M. Rec. 26032.) C. M. 0. 10, 1913, 4. 

52. "Suffering a vessel of the Navy to be stranded," etc. — Specific intent not required. 

See Intent, 2. 

53. Theft. See Drunkenness, 49; Intent, 5, 42, 49; Theft, 9. 

54. Threatening to assault his superior officer while in the execution of the duties 

of his office. C. H. O. 23, 1910, 6. 



INTENT 295 

55. Unavoidable force and compulsion— It is stated in De Hart's Military Law (p. 

164), referring to "compulsion or inevitable necessity" as a plea in bar of 'judgment, 
quoting from Blackstone's Commentaries (4 Com. 26): 

"These are a constraint upon the will, whereby a man is urged to do that which 
his judgment disapproves; and which it is presumed his will (if left to itself) would 
reject. As punishments, therefore, are only inflicted for the abuse of that free will, 
which God has given to man, it is highly just and equitable that a man should be 
excused for those acts which are done'through unavoidable force and compulsion." 
C. M. O. 5, 1912, 11. 

56. Using abusive, obscene, and threatening language toward his superior officer 

CM. 0.23, 1910,6. 

57. Uttering seditious words. C. M. 0. 14, 1910, 14-15. See also Sedition. 

58. "Violating or refusing obedience to any lawful general order," etc.— No specific 

intent necessary. See Intent, 2. 

59. " Willfully "—Intent expressed by. See Charges and Specifications, 52. 

60. "Wrongfully"— As expressing intent. See Charges and Specifications, 52. 

INTERCRANIAL HEMORRHAGE. C. M. O. 12, 1915, 9. See also Line of Duty and 
Misconduct Construed, 9. 

INTERFERING WITH A SENTINEL. 

1. Enlisted man— Charged with. C. M. 0. 102, 1903, 2. 

INTERLINEATIONS . 

1. Findings— Should be free from. See Findings, 7, 54. 

2. Sentences— Should be free from. See Sentences, 58. 

INTERLOCUTORY PROCEEDINGS. See Arguments, 4. 

INTERNATIONAL LAW. 

1. Citizenship— See Citizenship. 

2. Civil Courts of Cuba— Sentenced an enlisted man to confinement. See Confine- 

ment, 6. 

3. Expatriation— Evidence of. See Expatriation. 

4. Extradition treaty— Deserters. See Japan, 3; Treaties. 

5. Haiti— Convening of general courts-martial on foreign territory. See Jurisdiction, 53. 

6. Same— Gendarmerie. See Officers of the United States. 

7. Internment. See Internment. 

8. Judge Advocate General — Duties with reference to question of international law. 

See Judge Advocate General, 17. 

9. Jurisdiction — Convening naval courts-martial on foreign territory. See Jurisdic- 

tion, 53. 

10. Marine League. See Target Practice; Words and Phrases. 

11. Naturalization— Of aliens. See Citizenship. 

12. Same— Filipinos. See Filipinos, 2, 3. 

13. Neutral — Engaged in business in an enemy's country during war, is regarded as a 

citizen or subject of that country. See Citizenship, 18. 

14. Officer of the United States— Accepting office from a foreign state. See Officers 

of the United States, 1. 

15. Philippine Islands—Naturalization of native Filipino by enlistment in Navy. See 

Fhipinos, 2. 

16. Prisoners of war. File 28573-6. See also Prisoners of War. 

17. Retired officer— Civilemployment by foreign corporation. See Retired Officers, 31. 

18. Spanish subjects — Who were inhabitants of the Philippine Islands on April 11, 1899, 

other than those who had elected to preserve their allegiance to Spain, were bv the 
act of July 1, 1902 (32 Stat., 691), declared "to be citizens of the Philippine Islands 
and as such entitled to the protection of the United States." See Filipinos, 3. 

19. Treaty with Japan. See Japan, 3; Treaties. 

20. Treaty of peace ratified— With Spain on April 11, 1S99— Philippines were ceded to 

United States. See Filipinos, 3. 

21. War Prisoners. See Prisoners of War. 

22. War vessels— A war vessel is, throughout the civilized world, accorded rights of ex- 

territoriality. File 3973-136:2, J. A. G., Feb. 26, 1916. See also Words and Phrases 
(Exterritoriality). 



296 JEOPARDY, FORMER. 

INTERNMENT. 

1. Belligerents— Interned in a neutral state. File 28573-10; 27715-82. 

2. Neutral state — Belligerents interned in. See Internment, 1. 

3. Parole— Of officers of a belligerent ship interned in a neutral state. File 27715-82. 

INTERPRETATION OF STATUTES. See Statutory Construction and Inter- 
pretation. 

INTERROGATORIES. See Depositions, 3. 

INTOXICATED ON DUTY. 

1. Enlisted man— Charged with. C. M. O. 33, 1893. See Drunkenness on Duty, 
4, for proper charge. 

INTOXICATION. See also Drunkenness. 
1. Acting sailmaker— Charged with. G. C. M. Rec. 6178. Should have been charged as 
"Drunkenness." 

INVESTIGATION. 

1. Index for. See Index, 3. 

2. Oath— Administering oath to witnesses. See Government Contractors, 5. 

INVESTIGATION, BOARD OF. See Boards of Investigation. 

INVOLUNTARY RETIREMENT. 

1. Laws relating to. See Retirement of Officers, 28-31. 

IRONS. See Army, 7; Double Irons; Single Irons. 

IRREGULARITY AND CARELESSNESS IN REGARD TO DISCHARGE OF 
PECUNIARY OBLIGATIONS. 

1. Officer— Officer charged with "Fraud" in violation of article 14, etc., and found guilty 
in a less degree of the above offense. C. M. O. 4, 1916, 2. 

IRRESPONSIBLE MENTALLY. See Insanity, 27. 

JACK-OF-THE-DUST. 

1. Enlistment of. U. S. Navy Reg. Cir. No. 5, June, 1877. 

JAPAN. 

1. Civil and naval authorities. See Jurisdiction, 66. 

2. Citizenship. See Citizenship, 23. 

3. Deserters— Extradition treaty. File 27403-132, 1916. See also Treaties. 

4. Target practice — Within territorial waters of Japan. See Target Practice. 

JEOPARDY, FORMER. 

1. Accumulation of charges. See Accumulation of Offenses; Plea in Bar, 1. 

2. Acquittal or conviction. See Jeopardy, Former, 3, 4, 38. 

3. Commanding officer is not a "court-martial" — Counsel for accused conceded 

that to constitute former jeopardy there must have been a trial by a duly constituted 
court and that punishment imposed without trial does not bar subsequent proceedings 
by court-martial. Counsel, however, argues that the commanding officer of a naval 
vessel in administering punishments without trial by court-martial is himself "a 
duly constituted and legal court; " that the action of the commanding officer in such a 
case is "purely judicial," and accordingly "that the accused has been tried and con- 
victed and punished." 

The Supreme Court of the United States has said that the commanding officer of 
a naval vessel in punishing enlisted men under his command occupies a position which 
is "quasi judicial." ( Wilkes v. Dinsman, 7 How., 88, 129.) This accordingly disposes 
of the contention that the commanding officer acts in a "purely judicial " capacity, for 
the very word "quasi" used by the Supreme Court "negatives the idea of identity ," and 
while it is "a term used to mark a resemblance," nevertheless it "supposes a difference 
between two objects." (2 Bouvier, 802.) Furthermore, the commanding officer of 
a naval vessel does not as a court possess any power to compel witnesses to testify 
under oath when investigating complaints, nor nas he any power as a court to compel 
the attendance of witnesses, although he may, as commanding officer, compel the at- 
tendance of such witnesses in the case, if any, as may be under his command. It will 
therefore be seen that the commanding officer's investigation of charges is necessarily 



JEOPARDY, FORMER. 297 

"informal in a judicial sense," more so even than the investigation of charges by a court 
of inquiry, which has power to compel the attendance of witnesses, even civilians, 
to take testimony under oath, and to punish contempts. 

In an opinion of the Attorney General, he held that a reprimand issued as a punish- 
ment by a commander in chief is no bar to subsequent trial for the same offense. In 
that case the punishment was inflicted for the offense pursuant to law and regulation, 
after careful investigation by a court of inquiry— a tribunal established by law. 
(25 Op. Atty. Gen., 623.) Certainly such investigation, in which the members of the 
court,, the judge advocate, and the witnesses are all under oath and in which the pro- 
ceedings are conducted with the formalities of a court-martial, including the power 
to punish witnesses for contempt, is far more formal than an investigation conducted 
by a commanding officer. Furthermore, as the commander in chief has, by law, 
far more power in a disciplinary way than the commanding officer of a single vessel, 
his power extending even so far as to include the ordering and reviewing of general 
courts-martial, certainly a reprimand administered by him as a punishment, especi- 
ally after the facts have all been developed and reported to him by a court of inquiry, 
should be more far-reaching as a plea in bar than a punishment inflicted by a com- 
manding officer after an informal investigation not under oath and of which no record 
is required to be kept . If a court of inquiry after completing an exhaustive investiga- 
tion should decide that the accused is not to blame and, therefore, recommend that 
no further action be taken, this is not an acquittal nor is it conclusive upon superior 
authority; so, as held by the Attorney General, if the court of inquiry finds the accused 
was to blame and recommends that he be punished by the commander in chief, such 
recommendation and punishment imposed pursuant thereto does not bar subsequent 
trial by court-martial for the same offense. This being the case, it is reductio ad ab- 
surdum to contend that an informal investigation conducted by the commanding 
officer, who decides that the accused is. free from blame, is an acquittal by a duly 
constituted and legal court, and, therefore, is a bar to trial by general court-martial. 
C. M. O. 7, 1914, 8-9. See also G. C. M. Rec. 13370. 

A person who has been punished by his commanding officer for an offense, if subse- 
quently brought to trial therefor, may show such fact in evidence in mitigation of such 
sentence as the court, in the event of conviction, may impose. File 26251-8144, 
J. A. G., Nov. 22, 1913. 
4. Constitutional provision— The principle of the Constitution that no person shall 
" be subject for the same offense, to be twice put in jeopardy of life or limb" is derived 
to us immediately from the common law. To give benefit to this it is necessary that 
he should have been actually acquitted or convicted on a former trial and the record 
of this fact must be produced. C. M. O. 7, 1914, 5. 

It is a principle of common humanity, a universal rule of law, and an express pro- 
vision of the Constitution, that no man shall be twice put in jeopardy for the same 
offense. The law protects an officer from being tried even once for an offense more 
than two years old. File 26260-1392, 697, J. A. G., June 29, 1911, pp. 27-28. 

5. Constitutional right— The right of an accused to plead former jeopardy before a 

naval court-martial can not be directly claimed under the Constitution, in view of 
the decisions of the Supreme Court that "the power of Congress, in the government 
of the land and naval forces and of the militia, is not at all affected by the fifth or 
other amendment." File 26251-2993, J. A. G., March 10, 1910. See also Jeopardy, 
Former, 24. 

6. Court— Illegally constituted— No former jeopardy. See Deck Courts, 26. 

7. Court of inquiry— Punishment imposed, pursuant to findings and recommenda- 

tions of a court of inquiry, by a commander-in-chief does not bar subsequent t rial by 
court-martial for same offense. C. M. O. 7, 1914, 9. See also Courts of Inquiry, 29; 
Jeopardy, Former, 3; Private Reprimands, 3. 

Where the convenmg authority of a court of inquiry (fleet) states that "no further 
proceedings recommended," the department may either reconvene the court of 
inquiry or convene a court-martial for the trial of defendants. File 2639-04. 

8. Court-martial trial— The only disciplinary action by naval authority which would 

bar subsequent trial by court-martial for an offense is a former trial by court-marl ial 
for the same offense, and the commanding officer is not in any sense a "court-mart ial " 
within the meaning of this rule. C. M. O. 7, 1914, 1; 31, 1914, 1. See also C. M. O. 
49, 1910, 16; Jeopardy, Former, 3. 

9. Deck court. See Deck Courts, 26. 

10. Department's letter— Of reprimand. See Jeopardy, Former, 30. 



298 JEOPARDY, FORMER. 

11. Foreign court— The fact that an officer was punished by a Mexican court does not 

bar his trial by general court-martial for the same misconduct; nor does the fact that 
he was suspended by his commanding officer for unofficerlike conduct, based upon 
the same occurrences, bar court-martial proceedings. File 26251-8144, J. A. G., Nov. 
22, 1913. See also Jeopardy, Former, 45, 46; State, 7. 

12. Formal reprimand. See Jeopardy, Former, 19. 

13. Former punishment— Every kind of "former punishment" does not constitute a 

valid bar to subsequent trial by court-martial. The punishment, to constitute a 
valid bar, must be "punishment" in its legal sense and not a mere punishment ad- 
ministered by some authority whose inherent power authorizes him so to do. 14, 
J. A. G., 359J. 

14. Insanity — Where accused is insane at time of trial. See Insanity, 32. 

15. Jurisdiction of court— Offense committed while under Army jurisdiction and accused 

tried by naval court-martial. C. M. O. 31, 1915, &-10. See also Marines Serving 
with Army, 2, 3, 7. 

16. Same— Regular Navy on board Naval Militia ship. C. M. O. 49, 1915, 16-20. See 

also C. M. O. 10, 1915, 11-12; Naval Militia, 39-41. 

17. Limitations. See C. M. O. 21, 1885, 11. 

18. Mexican civil court. See Jeopardy, Former, 11. 

19. Navy Regulations, 1909— Provided: "No officer who has been formally reprimanded 

for an offense shall be subsequently tried therefor, nor shall that offense be the subject 
again of inquiry, except when it may be indispensable to prove a particular habit 
charged; a private reprimand, however, is no bar to subsequent investigation and 
trial. " (Art. 265.) "Whenever any person in the Navy who has been placed under 
suspension, in arrest, or confinement, or otherwise punished for misconduct, is released 
and entirely discharged by competent authority, such discharge shall be a bar to 
further disciplinary proceedings in the case by any naval authority. " (Art. 280.) 
Both of these provisions, however, were stricken out before Navy Regidations, 1913, 
were issued. See C. M. O. 50, 1893, 5; File 1493-04, overruling C.'M. O. 9, 1893. 

20. Philippine Islands civil court. See Jeopardy, Former, 45, 46. 

21. Previous punishment — "The accused pleaded, in bar of trial, that he had, by pun- 

ishment, already expiated the offense." G. O. 137, Sept. 7, 1869. See also C. M. 
O. 57, 1900. 

22. Previous punishment by commanding officer— By reduction, confinement, and 

working under custody of a sentinel does not constitute a good bar. C. M. O. 7, 
1914, 5. 

23. Principles of— In an opinion rendered by the Attorney General, August 29, 1819 (1 Op. 

Atty. Gen., 294), it was held that— 

A plea before a court-martial of a former arrest and discharge is bad; a former 
trial, only, is a defense under the eighty-seventh article of the Rules and Articles 
of War. 

The principle of the Constitution that no person shall "be subject for the same 
offense, to be twice put in jeopardy of life or limb" is derived to us immediately 
from the common law. It is a maxim of this law "that a man shall not be brought 
into danger of his life more than once for the same offense;" but to give the benefit 
of this maxim it is necessary that he should have been actually acquitted or convicted 
on a former trial and the record of this fact must be produced. 

In an opinion rendered July 31, 1883, by the Bureau of Military Justice, War 
Department, the rule with respect to the effect of punishment imposed by command- 
ing officers was stated as follows: 

"In this case the prisoner was arraigned on the charge of drunkenness on duty 
while a sergeant in command of a guard having charge of prisoners en route to the 
military prison. He pleaded in bar of trial that he had been previously punished 
for the offense by reduction, confinement, and working under custody of a sentinel. 
The court sustained the plea and the case is now submitted for the action of the 
convening officer. The reduction and confinement of this man as stated constituted 
no good bar to his trial for offense charged, however it might affect the quantum 
of punishment to be adjudged upon conviction of the offense. The action of the 
court is unusual and without sanction of law." (R. 47, p. 242, Dig. J. A. G. Army 
Digest, 1912, p. 519(2).) 

" Former punishment. — The plea of former punishment, i. e., that the accused has 
already been adequately punished for his offense by his commanding officer, though 
recognized in the English practice, is not known to our military law, and when 
made on our military trials has been properly overruled. Where indeed an accused 



JEOPARDY, FORMER. 299 

has, prior to trial, been subjected, on account of his offense, to any physical punish- 
ment, or to reduction to the ranks, or to a protracted arrest, or other unusual or 
unauthoriied discipline, he may properly show the fact in evidence on the general is- 
sue, in mitigation of such sentence as the court, in the event of his conviction, may 
impose. But, except in this form, he can not avail himself of such circumstances, 
upon a trial." (1 AVinth., p. 411.) 

"The Constitution of the United States, Article V, provides that no person shall 
'be subject, for the same offense, to be twice put in jeopardy of life or limb,' and 
this guarantee is applied to persons subject to military jurisdiction by the terms of 
the one hundred and second article of war, which are as follows: 

"Article 102. — No person shall be tried a second time for the same offense. 

"'Tried,' as here used, means duly prosecuted before a legally organized and com- 
petent court-martial to final conviction, or acquittal. Nothing short of 'conviction' 
or 'acquittal' will justify acceptance of the plea." (Dudley, p. 99, par. 194.) 

In an opinion rendered by the Attorney General, June 15, 1906 (25 Op. A. G., 
623), it was held, quoting syllabus: 

"A private reprimand, administered by the commander in chief of a fleet to a 
naval officer in accordance with the recommendation of a court of inquiry, as a pun- 
ishment for an offense, such as neglect of duty, is no bar to a subsequent trial of such 
officer by general court-martial for the same offense. 

"The proceedings of a board of inquest or of a court of inquiry are in no sense a 
trial of an issue or of an accused person. These boards perform no real judicial 
function, but are convened only for the purpose of informing the department in a 
preliminary way as to the facts involved m the inquiry. 

"The jeopardy of the law means real peril, originally of life or limb, and always 
of substantial punishment or penalty. There must be a trial upon an indictment 
for an offense, or upon some equivalent charge and presentment, as by court-martial, 
submitting a definite issue and involving conviction or acquittal." 

To the same effect see also Forms of Procedure for Courts and Boards in the Navy 
and Marine Corps, 1910, p. 23: 

"Plea of former jeopardy. — The jeopardy of the law means a real peril, originally 
of life or limb, and always of substantial punishment or penalty. A fundamental 
idea is that there must be a trial upon ani ndictment for an offense, or upon some 
equivalent charge and presentment, as by a court-martial, submitting a definite 
issue and involving conviction or acquittal. The person must be in danger of con- 
demnation; a mere inquiry or other informal proceeding (informal in a judicial sense) 
ending in a reprimand does not satisfy either element of the principle of second jeop- 
ardy. Of course, if there is a trial in some form, which might result in conviction 
and punishment, the jeopardy is none the less complete and valid as a bar to another 
trial because, in fact, it issues in a simple rebuke; for absolute acquittal, if the peril 
. is real, is equally a bar. This plea is, therefore, a valid bar when the accused has 
been duly prosecuted before a court-martial to a final conviction or acquittal: he 
may, however, waive objection to a second trial. (25 Opins. A. G., 623.)" C. M. O. 
7, 1914, 5-6. 
24. Same — The fifth amendment to the Constitution of the United States provides: 

"Nor shall any person be subject for the same offense to be twice put in jeopardy 
of life or limb." 

"This principle is derived to us immediately from the common law" (1 Op. Atly. 
Gen. 294; 6 Op. Atty. Gen. 204). 

It embodies the common-law rule in criminal trials as expressed in the pleas of 
" aulres foits acquit" (former acquittal), and " autrcs foils convict" (former conviction) 
(1 Op. Atty. Gen. 240). 

It follows that no person can be twice tried for the same offense unless he expressly 
or impliedly waives his right to plead his former trial in bar to t he second prosecul ion. 

However "every citizen of the United States is also a citizen of a State or a Terri- 
tory. He may be said to owe allegiance to two sovereigns, and may be liable to 
punishment for an infraction of the laws of either. The same act may" be an otYensc 
or transgression of the laws of both. Thus, an assault upon the marshal of t he United 
States, and hindering him in the execul ion of legal process, is a high offense against 
the United States, for which the perpetrator is liable to punishment; and the same 
act may be also a gross breach of the peace of the State, a riot , an assault . or a murder, 
and subject the same person to a punishment .under the State laws, for a misdemeanor 
or a felony. That either or both may (if (hey see lit) punish such an offender can 
not be doubted. Yet it can not bo truly averred that the offender has been twice 



300 JEOPARDY, FORMER. 

punished for the same offense; but only that by one act he has committed two offenses, 
for each of which he is justly punishable." (Moore v. Illinois, 14 How. 20.) 

It will be seen from the foregoing that while no person may bg twice tried for the 
same offense, where an officer or enlisted man of the Navy violates the law of a State 
and the same act is also a violation of the law of the United States, to wit. the Articles 
for the Government of the Navy, he may be tried by the State court for violations 
of the State law, and may thereafter be tried by naval court-martial for his offense 
against the law of the United States involved in the same act. Held, an officer or 
an enlisted man of the naval service who has been tried by a State court and acquitted 
or convicted, may be tried for the same act by a naval court-martial. File 26504-285, 
J. A. G., July 15, 1916. See also G. 0. 137, 1869; 152, March 29, 1870; C. M. O. 9, 1893, 4; 
44, 1893; 50, 1893; 33, 1896; 18, 1897, 2; 90, 1897, 2; 104, 1897; 155, 1901, 3; 164, 1901; 169, 
1901; 29, 1914; 13 J. A. G. 123; Jeopardy, Former, 45, 46; State, 7. 

25. Private reprimand— A private reprimand is not such a punishment as to constitute 

an effective plea in bar of further proceedings before a general court-martial, under 
the jeopardy clause of the Constitution. File 4579-7; Op. Atty. Gen., June 15, 1906 
(25 Op. Atty. Gen. 623). File 4579-7. See also Jeopardy, Former, 19. 

26. Same — "The accused pleaded in bar of trial the fact that he had been privately repri- 

manded for the offenses for which he was about to be tried, which plea was over- 
ruled by the court." Accused was acquitted. C. M. O., 28, 1907, 3. 

27. Public reprimand— See Jeopardy, Former, 29, 30; Plea in Bar, 6. 

28. Real "legal " peril— There must be some real "legal" peril. A mere inquiry, ending 

in a reprimand, is not sufficient to prevent a subsequent trial for the offense. File 
26251-2993, J. A. G., March 10, 1910. 

29. Reprimand — A reprimand administered to an enlisted man does not bar subsequent 

trial o f such enlisted man by general court-martial provided that the reprimand was not 
administered pursuant to sentence of court-martial. File 26836-16, J. A. G., Dec. 9, 
1913. See also File 26251-2993, J. A. G., March 10, 1910. 

30. Same — The accused pleaded in bar of trial on the ground of former jeopardy, he having 

received a letter of reprimand from the department which ended with these words, 
"You will acknowledge receipt of this communication, a copy of which will be placed 
with your record and the incident will be considered closed." The court overruled 
the plea and found the accused guilty. The department approved. The case was 
sent to the Attorney General who upheld the action of the court and the department. 
G. C. M. Rec. 21478; 21478 a, p. 5. See also Op. Atty. Gen., June 15, 1906 (25 Op. Atty. 
Gen., 623); File 26251-6297:9; Plea in Bar, 6. 

Letters of reprimand were addressed by a commander in chief of a fleet to an officer, 
in consequence of the recommendation of a court of inquiry. Later this officer was 
brought to trial by general court-martial for the same offense for which he had been 
reprimanded. He pleaded in bar that he had been previously punished for the same 
offense, which plea was properly overruled by the court. G. C. M. Rec. 15578. See 
also 25 Op. Atty. Gen. 623; File 26251-2993, J. A. G., Mar. 10, 1910, p. 10. 

31. Same — A reprimand administered to an enlisted man does not bar subsequent trial 

of such enlisted man by general court-martial provided that the reprimand was not 
administered pursuant to sentence of court-martial. File 26836-16, J. A. G., Dec. 
9, 1913. 

32. Restored to duty— Restoration to duty between the date of arrest and the date of 

trial can not be the basis of a valid ple'a in bar of trial. This has heretofore been de- 
cided in specific cases in accordance with the opinions of the Attorney General, and 
the regulations which at one time provided that men should not be tried after restora- 
tion to duty were revoked some years ago. Accordingly there is no authority for the 
statement that such action bars trial by naval court-martial. File 26251-6297:9, 
Sec. Navy, Dec. 28, 1914; C. M. O. 6, 1915, 15. See also File 26251-8539:1. 

33. Restriction— Previous punishment by restriction to the ship on which accused was 

serving. Court overruled the plea in bar and accused then pleaded "guiltv". 
Department stated that the court erred in so doing. C. M. O. 38, 1894, 3. This 
decision of the department has been overruled by its later decision in C. M. O. 4. 
1914. 

34. Revision— Evidence may not be admitted in revision because the accused having 

once been "placed in jeopardy" and the trial once been finished he is protected 
against being again tried in whole or in part for that offense, which is in effect what 
would be done were additional testimony permitted in revision. C. M. O. 5, 1914, 6. 
Returning the record for a revision of its findings or sentence does not constitute 
trying the accused a second time for the same offense. (Ex parte Reed, 100 U. S. 13; 



JEOPARDY, FORMER. 301 

Swaim v. U. S., 165 U. S. 553; Carter v. McClaughry, 183 U. S. 365; 6 Op. Atty. Gen 
204, 205.) 

35. Secretary of the Navy— The Secretary of the Navy has the right to censure a sub- 

ordinate, publicly or privately, for negligence or inefficiency in the performance of 
duty, or for conduct bringing discredit upon the service. Such rebuke may be pub- 
lished to the service in such manner as the department may, in its discretion, decide, 
and does not constitute a bar to subsequent trial for that offense by court-martial. 
It is the mere exercise of the Secretary's right of administration of discipline and is 
in no wise connected with his power of reviewing authority wherein he merely 
executes the sentence of public reprimand imposed by the court. File 26251-2993 
J. A. G., March 10, 1910. See also Secretaby of the Navy, 63. 

36. Specifications— Struck out by court— Where the court, on motion of counsel for the 

accused, strikes out a charge and specification because they "alleged several distinct 
and separate offenses, ' ' the accused ' ' may still be tried for the offenses stated therein, ' ' 
inasmuch as the charge and specification in question were stricken out as invalid. 
CM. 0.16, 1911, 4. 

Proceedings upon a "fatally defective" specification do not constitute former 
jeopardy. C. M. O. 22, 1916, 6. See also Deck Courts, 59. 

37. Same— Faulty deck court specifications. See Deck Courts, 59. 

38. Same — When called upon to plead before a summary court-martial, the accused, 

through his counsel, objected to the specification as "fatally defective." The court 
sustained the objection of the accused and notified the convening authority as re- 
quired by Forms of Procedure that the accused submitted a plea in bar of trial which 
the court decided was a valid one. Thereupon the convening authority withdrew 
the specification and directed prosecution thereon be discontinued. 

Thereafter, on June 16, 1916, the accused was brought before the same summary 
court-martial upon two specifications preferred by the same convening authority 
June 10, 1916, and setting forth in proper form the offenses charged in the specification 
in the previous case. The accused was represented by the same counsel, who now 
entered a plea of former j eopardy, in support of which he contended that the accused 
had already been tried for the same offenses. 

The court overruled the plea of former jeopardy thus interposed by the accused, 
who thereupon "noted an objection" and "stood mute" upon arraignment. The 
court found both specifications proved, with a slight modification in one, and 
adjudged a sentence. 

That the accused was not placed in jeopardy upon the original specification, and 
that the court properly overruled his plea on this ground, is established by precedent. 
(SeeC. M. O. 7, 1914; see also U. S. v. RogotI, 163 Fed. Rep. 311.) In the case last 
cited, it was said by the court: 

"It is difficult to see how the dismissal of an indictment before the case goes to 
the jury, when this dismissal is had upon the ground that no charge sufficient in 
law has ever been made against the defendant, can be said to have placed him in 
jeopardy. The entire transaction, from the finding of the indictment to the dis- 
missal, is made a nullity, and the defendant comes before the court upon the second 
indictment as if the first charge had never been made. 

"The court, having jurisdiction of the defendant nevertheless had no jurisdiction 
over the offense which was attempted to be charged, inasmuch as no offense was 
charged, and the defendant was therefore never in a position of jeopardy before a 
jury which was called to pass upon any sufficient criminal charge. The matter 
was disposed of as a question of law, with the same effect as if it had been argued 
upon demurrer to the indictment." 

The point which particularly deserves the department's notice in this connection 
is the fact, as shown above, that we here have the same accused, before the same 
court, and represented by the same counsel— an officer of the Navy— first contending 
that the original specification against him was "fatally defective," and then, when 
he had secured a favorable ruling upon this point, wholly changing front and contend- 
ing that the aforesaid specification was a "valid indictment ." 

The evils that would result were accused persons permitted to assume inconsistent 
positions in court as their interests might happen to change in the course of criminal 
proceedings are so obvious as to require little comment. The opportunity thus 
presented for the guilty to escape punishment would result in placing a premium 
upon the ability of ingenious attorneys to confuse and mislead t lie court in order 
to obtain decisions in their favor, onlv to insist upon the incorrectness of such deci- 
sions when, after conviction, it should become to the interest of their clients to do so. 



302 JEOPARDY, FORMER. 

"But the principle is well settled that, in criminal as well as in civil cases, a 
defendant must be held to the position which he assumes and upon which he requests 
and secures a favorable judgment or other personal advantage." (People v. Moakim, 
61 Hun. (N. Y.) 327.) 

In the case cited, the court, upon a former trial, had directed an acquittal upon the 
ground of a variance between the proof and the facts charged in the indictment. A 
second indictment was found for the same offense, upon the trial of which the defend- 
ants urged that in fact there was no material variance between the proof upon the 
former trial and the allegations of the first indictment; that therefore the defendants 
had been once put in jeopardy; and consequently the second indictment was within 
the constitutional prohibition. 

The court, however, declined to consider the question thus attempted to be raised, 
holding that "whether the variance referred to was or was not material, we think 
the defendants can not now be permitted to question the position which they took 
upon that head on the former trial. The record of that trial distinctly shows that 
the defendants there claimed that the variance was material; * * * having 
requested the court to rule in their favor in these particulars, and the court having 
thereupon directed an acquittal upon these very grounds, they can not now be heard 
to say that there was no material variance. * * * In other words, they must, 
under such circumstances, take the acquittal as it was directed and recorded, and 
they can not now be permitted to go behind the record as it was thus made up." 

The principle has been stated in accordance with this case by Bishop in his work 
on Criminal Law (7th ed., sec. 1000) and has been applied in numerous reported 
decisions, for, as was said by the court in United States v. Jones (31 Fed. Rep. 725), 
"while counsel may go to great length in defense of one charged with crime, they 
can not be heard to blow hot and cold upon the same issue in the same record. " (See 
also State v. Meekine, 41 La. Ann. 543: United States v. Rogoff. 163 Fed. Rep. 311). 

"Without further citation of authorities, it is sufficiently clear that the original 
specification preferred against Corpl. * * * must now be taken as "fatally defec- 
tive" in accordance with counsel's contention which was sustained by the court. 
This being so, there is an end to the matter, the plea of former jeopardy based upon 
proceedings which, at the instance of the accused, were declared a millity, having 
no support in law wholly aside from the fact that said proceedings did not advance 
to the stage required under the citations given above to operate as a bar of trial File 
26287-3475, J. A. G., July 5, 1916, approved by Sec. Navy, July 5, 1916; C. M. O. 22, 
1916, 6-8. 

39. State courts. See Jeopardy, Former, 24, 45, 46. 

40. Summary court-martial trial— Court sustained the plea in bar of trial the accused 

proving that he had been tried by summary court-martial for the offenses. G. O. 
152, March 29, 1870. 

41. Suspension from duty— By commanding officer, although imposed as punishment 

for an offense, does not bar subsequent trial by general court-martial for the same 
offense. C. M. O. 7, 1914, 1; 31, 1914, 1. See also G. C. M. Rec. 13370. 

42. Same— Where an officer suspended from duty for a few hours was subsequently court- 

martialed, his suspension can not be regarded as punishment for the same offense. 
Bishop v. U. S. (38 Ct. Cls. 473, 474). 

43. Tagged "Thief"— Accused charged with theft and pleaded guilty. After the trial 

was finished it came to the knowledge of the court that the accused had been pun- 
ished by having the tag "Thief" hung about his neck. In the interests of substantial 
justice,' the court reopened the case, and permitted the accused to enter a plea in 
bar of trial. File 799-94. See also 13 J. A. G. 457, Aug. 18, 1905, where accused pleaded 
in bar that the Academic Board had already punished him by giving him a mark 
of zero" in seamanship and navigation, and court improperly sustained plea. But see 
Jeopardy, Former, 8, 13, 22, 23, 24, 28, overruling these decisions. 

44. Tried twice for same offense— Man should not be tried twice for the same offense 

under different charges, the facts alleged in the specifications being the same. Where 
man was tried by deck court for jumping ship and convicted, and was later tried 
and convicted of absence without permission, the facts alleged in the specifications 
of both offenses being the same, the second case was disapproved by the depart- 
ment. File 27217-21. See also C. M. O. 49, 1910, 16; State, 7. But see C. M. O., 3, 
1916, 7-8. 

45. United States courts— A person may not be tried twice for the same offense (by 

different courts) where both tribunals derive their jurisdiction and authority from 
the United States, as in the case of a court-martial and civil court in the Philippine 
Islands. (Grafton v. U. S., 206 U. S. 333, tried May 27, 1907). See Jeopardy, For- 
mer, 24, 46. 



303 

46. Same — Where the same act constitutes an offense under a state law, as well as an 
offense under a law of the United States, the State court has jurisdiction to punish 
the offense under its law, as has also the Federal court. (Fox v. Ohio (5 How. 433); 
U. S. v. Marigold (9 How. 569); Moore v. Illinois (14 How. 19); Ex Parte Siebold 
(100 U. S. 390); Cross v. North Carolina (132 U. S. 131).) 14 Op. J. A. G., 188, Aug. 
14, 1909. See Jeopardy, Former, 24, 45; State, 7. 

JOINDER, TRIAL IN. 

1. Accused — Where men are tried in joinder they should be referred to in the record as 

"each of the accused." See Joinder, Trial in, 14, 15. 

2. Acquittal — Of each person tried in joinder should be separately recorded. See Joinder, 

Trial in, 15. 

3. Challenges. See Joinder, Trial in, 18. 

4. Collision. See Joinder, Trial in, 5. 

5. Commanding officer and officer-of-the-deck— Tried in joinder for collision with 

a merchant schooner. C. M. O. 44, 1883. 

6. Convening authority should indicate— When the convening authority does not 

join the accused in the charges and specification, but indicates that he desires them 
tried separately by preferring separate charges and specifications, with separate letters 
of transmittal, courts-martial should not try them in joinder. C. M. O. 10, 1911, 
3-5; 42, 1914, 4. 

7. Court should not try men in joinder without authority — Two men were charged 

with "Desertion" the specifications being identical; tried in joinder by court with- 
out authority of convening authority (Secretary of the Navy); did not desire counsel; 
made no objection to being tried in joinder; department disapproved, stating that 
the action of the court in trying the men in joinder was "unlawful," that such trial 
was "illegal" etc. C. M. O. 39, 1905, 2; G. C. M. Rec. 12835. But see Joinder, Trial 
in, 9. 

In the above case the department severely criticized the court. The action of the 
court was certainly irregular and constituted a usurpation by the court of the pre- 
rogative of the convening authority. It should be distinctlv impressed upon officers 
serving as members of courts-martial that the question whether or not the accused 
shall be tried in joinder is one of the matters which is to be determined in all cases by 
the convening authority, and that for such officers to assume that they have the 
right to determine such a question for themselves, without instructions from the 
convening authority, is an indication, at the least, of ignorance on their part of the 
duties devolving upon them and concerning which an efficient officer is expected to 
be informed. 

8. Same— Convening authority was Secretary of the Navy— Two men were charged sep- 

arately with "Scandalous conduct tending to the destruction of good morals" and 
"Drunkenness on duty," one specification under each charge; everything was sepa- 
rate and the department desired them tried separately but the court tried them in 
joinder; no objection was made by the accused in the above case against being tried 
in joinder; accused were represented by civilian counsel; as the offenses were several 
in character the department disapproved the proceedings, findings and acquittals. 
C. M. 0. 10, 1911, 3-5; G. C. M. Rec. 23473. See also Joinder, Trial in, 9. 

9. Same — Separate specifications preferred — On March 28, 1916, the convening authority 

ordered the trial by summary court-martial of a fireman first class, preferring two 
specifications, each alleging an offense. On the same date, the same convening au- 
thority preferred similar specifications, separately, against two other enlisted men 
directing their trial by summary court-martial on board the same ship and before 
the same summary court-martial. The cases of these men were entirely separate 
and distinct, having separate specifications which did not allege that the offenses 
were committed in collusion or in concert. The court tried the men in joinder with- 
out instructions so to do by the convening authority. At the trial each of the accused 
was represented by the same naval otlicer as his counsel. Not only was there no 
objection to the procedure of trying these men in joinder made by counsel or any of 
the accused, but the record expressly disclosed the statement that each of the accused 
declared "that he desired to be tried in joinder with other two accused." 

The Supreme Court of the United States, in Logan v. United States (144 U. S. 263, 
296), held that where objection was not made to the consolidation of indict met; ts 
in a case similar to this, the question whether such consolidation was or was not legal 
would not be considered in review. 

50756°— 17 20 



304 JOINDER, TRIAL IN. 

Also the Attorney General has stated in an opinion (4 Op. Atty. Gen., 171): 

"It is a vain conceit, that because the proceedings are irregular, and fatally irregu- 
lar {if the exception be taken in proper time), therefore the judgment once suffered to be 
entered up is void. Thus there are many things * * * in the conduct of a trial, 
that make the verdict void; yet, if advantage be not taken of them by motion in 
arrest of judgment, no writ of error lies, even where there is a competent court of 
errors (Rob. Abr., 783; 4 Cro. Eliz., 616), and it is very proper it should be so; * * * 
and the repose oi society, and the putting an end to controversy and litigation, are 
more desirable than mere accuracy of procedure, or even the justice of a particular 
case — not to mention that acquiescence implies consent, and consent cures error." 

It does not appear that the accused in this case were prejudiced by their trial in 
joinder, but on the contrary their statement that they "desired to be tried in joinder 
with other two accused'' would indicate that they regarded such procedure advan- 
tageous to their interests. Furthermore the court-martial reached separate findings 
and adjudged separate sentences in the case of each of the accused, who were also 
separately arraigned. Held, the procedure followed was not such as to invalidate 
the proceedings. (The following precedents of the department have been carefullv 
considered: C. M. O. 44, 1883; 39, 1884; 15, 1896; 32, 1904, p. 2; 39, 1905, p. 2; 78, 190o; 
37, 1909, p. 7; 10, 1911, pp. 3-5; 42, 1914, p. 4; Index-Digest, 1914, p. 25; G. C. M. Rec. 
Nos. 11835; 20916; 23473; 23743.) 

In a case similar to this the Secretary of the Navy approved an opinion of the Judge 
Advocate General which read in part as follows: "However, the action of the court 
while not illegal under the circumstances of the case, was certainly irregular and 
constituted a usurpation by the court of the prerogative of the convening authority. 
It should be distinctly impressed upon officers serving as members of courts-martial 
that the question whether or not accused shall be tried in joinder is one of the matters 
which is to be determined in all cases by the convening authority, and that for such 
officers to assume that they have the right to determine such a question for them- 
selves, without instructions from the convening authority, is an indication, at the 
least, of ignorance on their part of the duties devolving upon them and concerning 
which an efficient officer is expected to be informed." (File 26251-4794, Sec. Navy, 
June 8, 1911; G. C. M. Rec. No. 23743). 

The findings and sentences in this case were accordingly approved. File 26287- 
3381, J. A. G., April 27, 1916; C. M. O. 13, 1916, 5-6. 

10. Same — Convening authority was department — Three men were charged separately 

with "Knowingly and willfully misappropriating and applying to his own use and 
benefit, property of the United States, furnished and intended for the naval service 
thereof," and "Wrongfully and knowingly selling property of the United States, 
furnished and intended for the naval service thereof"; court of its own initiative 
tried these three men in joinder; all three of the accused were represented by civilian 
counsel; no objection to being tried in joinder; department did not disapprove this 
case because the "collusion" existed here to make it a proper offense to try in joinder 
citing 22 Cyc. 373 and Logan v. U. S. with reference to "not objecting." G. C. M. 
Rec. 23743. But see Joinder, Trial in, 9. 

11. Same — Convening authority was commander in chief of the Pacific Squadron — Four 

men were charged with "Desertion" and "Violation of the eighth clause of the four- 
teenth article of the Articles for the Government of the Navy;" one specification 
under each charge each man being properly referred to in it; tried in joinder; accused 
were represented by an officer; no objection was made to being tried in joinder on 
these offenses; convening authority (same officer) approved without comment; 
department set aside the proceedings, findings and sentences on the ground that 
these offenses were several. C. M. O. 32, 1904, 2; G. C. M. Rec. 11835. But see 
Joinder, Trial in, 9. 

12. Enlisted men — Two enlisted men tried in joinder on the charges of "Theft" and 

"Disobedience of the lawful orders of their superior officer." C. M. O. 39, 1884. 

13. Same — Four enlisted men tried in joinder on the charge of "Conduct to the prejudice 

of good order and discipline." The court's finding was that the four men were 
"jointly and severally of the charge, 'Guilty.'" One sentence was used but it 
contained the names of all of the men. The department approved without com- 
ment as to the trial in joinder. C. M. O. 15, 1896. See also C. M. O. 37, 1904, 7; G. 
C. M. Rec. 20916; Joinder, Trial in, 9. 

14. Same — Two enlisted men tried in joinder on the charge of "Scandalous conduct tend- 

ing to tho destruction of good morals." The department criticised the procedure 
as the record disclosed the fact that when referred to the two men accused were 



JOINDER, TRIAL IN. 305 

referred to as "the accused" instead of "each of the accused"; also because each of 
the accused was not arraigned separately. For these irregularities and others of a 
more serious nature the department set the sentences aside and directed that each 
of the accused be discharged as undesirable as an independent proceedings. C. M. O. 
78, 1905, 1. See also C. M. O. 30, 1910, 8. 

15. Finding, sentence (or acquittal)— Of each person tried in joinder should be sepa- 

rately recorded. Reference in the record to "the accused" is in error, as it should 
be recorded as "each of the accused." C. M. O. 78, 1905, 1; 30, 1910, 8. 

16. Method— If the convening authority desires to try men in joinder the proper pro- 

cedure is to prefer only one set of charges and specifications, and write only one letter 
of transmittal. C. M. O. 37, 1909, 7; 42, 1914, 4. 

17. Procedure— In an actual trial in joinder is described in Forms of Procedure, 1910, 

pp. 24, 41. (See also, C. M. O. 37, 1909, p. 7; 30, 1910, p. 8; 10, 1911, pp. 3-5; G. C. M. 
Record 20916; 23743.) C. M. O. 42, 1914, 4. 

18. Record of proceedings— Should show that if all or any of the accused take the stand 

they did so at their own request; that they were severally given opportunity to 
challenge members; that they severally expressed themselves ready for trial and that 
they were severally afforded opportunitv to cross-examine all witnesses produced 
by the prosecution. C. M. O. 37, 1909, 7. See also Joinder, Trial in, 14. 

19. When trials in joinder may be had— It is observed that the accused persons were 

tried in joinder upon the charges of "Desertion" and "Violation of the eighth clause 
of the fourteenth article of the Articles for the Government of the Navy." 

It is further observed that the specification of the second charge was defective 
in that, while the accused were charged with violating the eightn clause of the four- 
teenth article of the Articles for the Government of the Navy, the allegation con- 
tained in the specification was not set forth in the terms used in the article. The 
specification should have alleged that each of the accused "wrongfully and knowingly" 
disposed of certain arms, etc., instead of which it was alleged simply that the accused 
unlawfully disposed of certain arms, etc. The accused were improperly tried in 
joinder, it not being alleged, nor was any evidence adduced at the trial' to prove, 
that the offenses were committed together, much less in concert. 

Attention is invited to Army Digest, 1901, art. 715, as follows: 

Properly to warrant the joining of several persons in the same charge and the 
bringing them to trial together thereon, the offense must be such as requires for its 
commission a combination of action and must have been committed by the accused 
in concert or in pursuance of a common intent. The mere fact of their committing 
the same offense together and at the same time, although material as going to show 
concert, does not necessarily establish it. Thus the fact that several soldiers have 
absented themselves together without leave, will not, in the absence of evidence 
indicating a conspiracy or concert of action, justify their being arraigned together 
on a common charge, for they may merely have been availing themselves of the 
same convenient opportunity for leaving their station. Nor is desertion, of which 
the gist is a certain personal intent, ordinarily chargeable as a joint offense. 

But where two or more soldiers have in fact deserted together as the result of a 
concerted plan they may properly be jointly or severally charged with desertion, 
the specification in either case describing in proper terms a "desertion in the execu- 
tion of a conspiracy." 

But whenever the offense is, in its nature, several there can be no joinder. 

Where the offense indicted doth not wholly arise from the joint act of all the 
defendants, but from such act joined with some personal and particular defect or 
omission of each defendant, without which it would be no offense, * * * the 
indictment must charge them severally and not jointly. 

The mere fact that several persons happen to have committed the same offense 
at the same time does not authorize their being joined in the charge. Thus where 
two or more soldiers take occasion to desert, or' absent themselves without leave, 
in company, but not in pursuance of a common unlawful design and concert, the 
case is not one of a single joint offense, but of several separate offenses of the same 
character, which are no less several in law though committed at the same moment. 

Prisoners will not be joined in the same charge nor tried on joint charges, unless 
for concert of action in the same offense. (Winthrop, pp. 20S-209.) 

No previous deliberate concert was alleged in the specifications, nor proved by 
any evidence adduced at the trial, and it does not anywhere appear that the persons 



306 JOINDER, TRIAL IN. 

accused in this case acted in pursuance of a common, unlawful design and concert. 
They were, therefore, improperly tried in joinder. 

It may be added that the misjoinder here was of vital effect, for evidence of an 
alleged voluntary statement on the part of one of the accused in reference to himself 
alone was heard at the trial of each and all the accused. 

The proceedings, findings, and sentence were set aside, and the accused released 
from confinement and restored to duty. C. M. O. 32, 1904, 2. But see Joinder, 
Trial in, 9. 

JUDGE. 

1. Deck court officer as. C. M. O. 14, 1911, 7. See also Deck Courts, 27. 

2. Members of courts-martial— Capacity as judges. See Court, 103; Members of 

Courts-Martial, 25. 

JUDGE ADVOCATE. 

1. "Absence from station without leave"— Judge advocate tried by general court- 

martial. C. M. O. 104, 1896. 

2. Accused— Relation of judge advocate to accused as counsel. See Judge Advocate, 

28-44. 

3. Acquittals— Should be in handwriting of judge advocate. See Acquittal, 17. 

4. Admissions by judge advocate— Of contents of officer's record. See Reports on 

Fitness, 5. 

5. Same— In open court that a person would give certain testimony if he were summoned 

and testified before court. See Admissions, 3. 

6. Admonished and censured— A letter of admonition and censure was placed on the 

military record of an officer who acted as judge advocate because of the numerous 
occasions upon which it became necessary to return records of general courts-martial 
because of clerical errors and erroneous statements. File 26504-65, Sec. Navy, Dec. 
2, 1909. 

7. Adviser to court. See Judge Advocate, 49-59. 

8. "Alcoholism"— Judge advocate placed on sick list for. See Alcoholism, 1. 

9. Alterations— In findings and sentence. See Findings, 7; Sentences, 10. 

10. Arguments, closing. See Arguments. 

11. Same— Upon admissibility of evidence, etc. See Arguments, 4. 

12. Arraignment. See Arraignment. 

13. Carelessness — In not establishing fact that a certain time in evidence was a. to. or 

p. to. (C. M. O. 28, 1910, 7). Failing to introduce a confession. (C. M. 0. 26, 1910, 7). 
For not objecting to an incompetent witness (wife of accused) when he admitted that 
he knew of such disability. (C. M. O. 21, 1910, 13). In certifying document to be 
a true copy when it was not an exact copy. (C. M. O. 17, 1910, 3; 23, 1910, 3). Dere- 
lict in his duties. (C. M. O. 37, 1909, 4). Careless in writing up record. (C. M. O. 
26, 1910, 3; 16, 1912, 4). Failing to introduce evidence of previous convictions which 
was in his possession. (See Previous Convictions, 17.) Failing to introduce evi- 
dence to identify accused. (See Fraudulent Enlistment, 51.) Gross careless- 
ness. (C. M. O. 78, 1905, 1.) 

14. Censured— By department for being careless in certifying documents. C. M. O. 23, 

1910, 3. See also C. M. O. 12, 1912, 8. 

A judge advocate was censured for not advising the court as to the law. See Judge 
Advocate, 69. 

15. Certificate of claim— For civilian witness fee. See Address, 3. 

16. Challenges. See Challenges, 5, 6. 

17. Chaplain— May act as judge advocate. See Chaplains, 4. 

18. Charges and specifications— Correction of errors in. See Charges and Specifi- 

cations, 33. 

19. Clerical errors— In charges and specifications. See Charges and Specifications, 

33. 

20. "Closed court"— Judge advocate should not be present. See Judge Advocate, 105. 

21. Same— The advice to the court by the judge advocate on all matters of form and law 

must be in open court. G. C. M. Rec. 24633. 

22. Closing argument— Judge advocate should not make his closing argument a plea 

for the accused when the accused is represented by counsel of his own selection. See 
Arguments, 2. 

23. Same— Judge advocate entitled to final argument in a general court-martial trial, 

even where court in its discretion permits prosecution or defense more than one argu- 
ment. See Arguments, 1. 



JUDGE ADVOCATE. 307 

24. Comment — No comment by judge advocate if court privileges the witness not to 

answer criminating questions. See Self-Incrimination, 4. 

25. Same — No comment by judge advocate on failure of accused to take stand as witness 

in own behalf. See Witnesses, 11. 

26. Contempt of court. See Contempt of Court. 

27. Convening authority— Judge advocate responsible for proper performance of his 

duties to convening authority. See Judge Advocate, 60. 

28. Counsel, for accused— Though the judge advocate may act in an advisory capacity 

as counsel to the accused, rendering him both in and out of court such assistance as 
may be compatible with his primary duty of conducting the prosecution, he can not 
act in a personal capacity of counsel, since such character would be incompatible 
with that of public prosecutor, and it is therefore improper to have him specifically 
designated as such. C. M. O. 37, 1909, 4; 42, 1909, 8; 49, 1910, 13. See also G. C. M. 
Rec. 22141. 

29. Same— Where the accused is without counsel the judge advocate will properly render 

him, both in and out of court, such assistance as may be compatible with his pri- 
mary duty of efficiently conducting the prosecution. CM. O. 6, 1909, 3; 47, 1910, 4; 
26, 1910, 7. 

30. Same— The judge advocate will properly advise the accused of his right to be fur- 

nished with counsel. C. M. O. 6, 1909. 3. 

31. Same — The judge advocate will properly advise the accused of his right to take the 

stand as a witness. C. M. O. 6, 1909, 3. 

32. Same— The judge advocate will properly assist the accused, when he is without 

counsel, in bringing out such circumstances of extenuation as may exist in the case. 
Also in offering pleas, general or special. CM. O. 6, 1909, 3. 

33. Same— Should not make inaccurate statements while acting in the capacity of counsel 

to the accused. 

34. Same— The judge advocate will especially guard against even suggesting that the 

accused plead " Guilty," as inadvisable and objectionable. CM. O. 6, 1909, 3. See 
also Advising, 3; Judge Advocate, 86. 

35. Same— Judges advocates of general courts-martial should, where the accused is not 

represented by counsel, aid him in properly presenting his case to the court and in 
guarding his interests they should inform the accused that any statement that he 
may make can not be considered as evidence, but if he takes the stand and testifies 
in his own behalf the facts then represented could be considered as evidence. Of 
course the advice given by the judge advocate must necessarily be determined within 
his j udgment as to the best procedure to follow. File 26251-9722. 

36. Same — Where the accused is without counsel the judge advocate should show par- 

ticular care not to find himself in the position of asking leading questions, improperly. 
C M. O. 26, 1910, 7. 

37. Same — "In the remarks of the judge advocate in his capacity as counsel for the 

accused it is stated that the accused has only three minor offenses under both original 
and fraudulent enlistments. This appears to be inaccurate, as an examination of 
the attached copies of the enlistment records shows eight offenses." The judge 
advocate should be careful to be accurate in his statements. 

38. Same— Where the accused is without counsel the judge advocate should show par- 

ticular care to object to the admission of improper testimony. C. M. O. 26, 1910, 7. 

39. Same— Judge advocate should not make his closing argument a plea in behalf of the 

accused when the accused is represented by counsel of his own selection. See Argu- 
ments, 2. 

40. Same— When the accused is represented by civilian counsel, this fact relieves the 

judge advocate, in a measure, of his duties as to advising the accused. C. M. O. 
47, 1910, 4. 

41. Same— Should not be directed by the president of the court to act in a personal 

capacity as counsel for the accused. C M. O. 49, 1910, 13. 

42. Same— Judge advocate should not be specially designated as such. C. M. O. 37, L909. 

4; 42, 1909, 8; 49, 1910, 13. 

43. Same— Judge advocate may make a closing statement for accused. C M. O. 34, 

1913, 7. 

44. Same— Remarks of judge advocate in making a closing statement for accused is not 

evidence and court should not give weight to them as such. C. M. O. 34, 1913. S. 

45. Counsel for judge advocate — It was noted that the counsel for the accused entered 

an objection to counsel for the judge advocate "actively taking charge of the case, 
taking charge of the cross-examination, addressing the court," and that "under iho 



308 JUDGE ADVOCATE. 

customs of the service, the judge advocate should have charge of the case, and that 
counsel for judge advocate should restrict himself to advising the judge advocate 
in any matter in or out of court, as he may desire." The court ruled that "hereafter 
the judge advocate would address the court and propose the questions directly, and 
not through his assistant." The matter being brought to the attention of the depart- 
ment, telegraphic orders were sent to the counsel for the judge advocate, signed by 
the convening authority, detailing him as counsel for the judge advocate and direct- 
ing him to act in accordance with Navy Regulations, 1913, R-793, which reads in 
part as follows: "If counsel be detailed by the convening authority to assist the judge 
advocate, the court shall give him equal facilities with the counsel for the accused in 
the performance of his duties." Upon receipt of these orders, the "president stated 
that the court would be guided by that regulation," and the record discloses that 
counsel for the judge advocate was granted all the privileges required by the above 
regulation. (See File 26504-140, J. A. G., May 6, 1912.) C. M. O. 41, 1915, 10-11; File 
26251-11180: 10, Sec. Navy, Nov. 2, 1915. See also G. C. M. Rec. 31509, p. 3. 

46. Same— Solicitor assigned as associate and assistant to a judge advocate of a court of 

inquiry. See Counsel, 49. 

47. Same — Law clerk assigned as. See Counsel, 39. 

48. Same — Shall be appointed by convening authority. See Judge Advocate, 45. 

49. Court, adviser to — While it is the duty of the judge advocate to advise the court in 

all matters of law and form he should be exceedingly careful to give proper advice 
and to refrain from giving advice which is directly at variance with the instructions 
• issued by the department in court-martial orders and Forms of Procedure. C. M. O. 
29, 1914, 7. See also Guilty in a Less Degree than Charged, 9, 18; C. M. O. 20, 
1899. 

50. Same — Where the offense was of a grave character and one committed in a particularly 

scandalous manner, the department considered that the judge advocate should 
have advised the court of the nature of the offense, when the accused had pleaded 
"guilty" in order that evidence could have been taken for the purpose of presenting 
the entire circumstances of the offense to the court. C. M. O. 1, 1914, 5-6. See also 
Evidence, 42. 

51. Same — It is an improper action for a court to refuse a certain question to be asked 

when the judge advocate advises the court that the question was contained in a form 
sent him from the office of the Judge Advocate General. C. M. O. 42, 1909, 7. 

52. Same— Corrects statement of president of general court-martial. C. M. 0. 14, 1910, 11. 

53. Same — The court errs when it does not accept the advice of the judge advocate, that 

a previous conviction which occurred in an enlistment from which the accused was 
dishonorably discharged by court-martial is admissible. C. M. O. 28, 1913, 4. 

54. Same — On every occasion when the court demands his opinion, the judge advocate 

is bound to give it freely and fully, and, even when it is not requested to caution 
the court against any deviation from essential form in its proceedings, or against 
any act or ruling in violation of law or material justice. C. M. O. 49, 1910, 7; 17, 1910, 
10; 28, 1913, 4. See also Judge Advocate, 58, 59, 69. 

55. Same — Where the statement of the accused is inconsistent with his plea of guilty the 

judge advocate will very properly advise the court as to the correct procedure and 
the court errs in not accepting the advice if the statement and plea are manifestly 
inconsistent. C. M. O. 49, 1910, 7. 

56. Same— The advice to the court by the judge advocate on all matters of form and law 

must be in open court. See Judge Advocate, 21. 

57. Same— Where upon the completion of a trial and before the court was cleared for delib- 

eration, the judge advocate requested that upon the court arriving at its findings, 
and prior to proceeding to deliberate upon the sentence, he be called before it to 
record the findings, after which the court clear for deliberation upon the sentence, 
the court is in error if it does not follow this procedure which is prescribed by the 
Forms of Procedure, 1910, and Navy Regulations. C. M. O. 17, 1910, 10. 

58. Same — It is the duty of the judge advocate to advise the court on all matters of law 

and form, and should his advice be disregarded the judge advocate shall be allowed 
to enter his opinion on the record. Where the court, m subsequent cases, follows 
the procedure to which the judge advocate objected in a prior case, it is the duty of 
the judge advocate to, in each case, advise the court. The ruling of the court in the 
prior case does not relieve the judge advocate from his duty to again raise the point 
in each subsequent case, as each record must be complete in itself, and where a court 
ruled that its first ruling applied to all subsequent cases, the department held that 
the court was in error. C. M. 0. 17, 1910, 10-11. See also Judge A dvocate, 54, 59, 69. 






JUDGE ADVOCATE. 309 

59. Same— "Relative to the duties of the judge advocate of a general court-martial the 

following provisions appear in the Navy Regulations, 1913: 

"R-749 (2) 'On every occasion when the court demands his opinion, he is bound 
to give it freely and fully, and, even when it is not requested, to caution the court 
against any deviation from essential form in its proceedings, or against any act or 
ruling in violation of law or material justice. ' [See CM. O. 25, 1916.] 

"R-752 (1) 'The judge advocate is particularly to object to admission of improper 
evidence, and shall point out to the court the irrelevancy of any testimony that may 
be adduced which does not bear upon the matter under investigation. 

" '(2) Should the advice of the judge advocate be disregarded by the court, he 
shall be allowed to enter his opinion upon the record. Under such circumstances it 
is also proper for the court to record the reason for its decision. The minutes of 
opinion and decision are made for the information of the revising authority, who 
should have the error or wrong, on whichever side it may be found, brought fairly 
under his consideration; but neither the judge advocate, the accused, nor any mem- 
ber of the court has any right to enter an exception or protest on the record.' 

"R-741 (3) 'The judge advocate is, in his military character as an officer, respon- 
sible for the proper discharge of his duty to the convening authority.' " 

In view of these regulations, regardless of whether the judge advocate is correct 
in his opinion or not, the court errs in administering a rebuke and is wholly 
without power to do so. C. M. O. 49, 1915, 10, 11. See also G. C. M. Rec. 32388; 
Judge Advocate, 75, 113. 

"In the theory of military courts the judge advocate of the court is the legal adviser 
and he is in theory, and in many instances he is in fact, a lawyer, a member of the 
bar, and an officer of experience in military jurisprudence. For example, the United 
States Army, other armies, and some navies in the world are provided with a permanent 
corps of judges advocate, all of whom are lawyers of experience, who * * * act 
as judges advocate in all important trials." But "in the Navy, the courts are fre- 
quently thrown upon their own resources and in fact in the majority of cases the 
senior members of the courts are more experienced and possess a more accurate 
knowledge of the law than does the judge advocate himself. For these reasons it has 
been the practice of the department, while deferring to the findings of the court on 
questions of fact, to unhesitatingly on receipt of the record of proceedings give instruc- 
tions to the court concerning matters of law which should * * * have been given 
bv the judge advocate at the time of the trial." ( For example, see Judge Advocate, 
69.) File 26251-12159, Sec. Navy, Oct/ 30, 1916, p. 2. 

60. Court should not censure — The judge advocate is, in his military character as an 

officer, responsible for the proper performance of his duty to the convening authority. 
Therefore, a court errs in rebuking him, rather than reporting him to the convening 
authority. C. M. O. 49, 1915, 11. See also C. M. 0. 17, 1910, 11. 

61. Court not to usurp— The functions of judge advocate. See C. M. O. 72. 1895, 2: 81, 

1897, 2. 

62. Court, functions of— Not to be usurped by judge advocate. See Judge Advo- 

cate, 123, 124. 

63. Court of inquiry— Duties of judge advocate. See Courts of Inquiry, 30. 

May administer oaths, etc. C. M. O. 5, 1916, 7. 

64. Same— Solicitor assigned as associate and assistant to a judge advocate of a court of 

inquiry. See Counsel, 49. 

65. Court-martial orders— Should carefully read and study. See Court-Martial 

Orders 1 S 

66. Same— Name of judge advocate printed in. C. M. O. 38, 1915, 3. 

67. Criticized by department— In that he neglected his duty as prosecutor and failed to 

present proper evidence, cross examine witnesses, and for making his closing argu- 
ment a plea for the accused when the accused was represented by counsel of his own 
selection. C. M. 0. 1, 1914, 8. See also Arguments, 2. 

68. Same— Criticized for failing to introduce evidence in his possession (see Previous 

Convictions, 17); for not producing better evidence which was available (C. M. O. 
37, 1909, 5-6); for neglecting his duty in that he failed to present proper evidence, 
cross-examine witnesses, and in his closing argument pleaded for the accused who was 
represented by counsel of his own choosing (C. M. 0. 1, 1914, S) ; for not making efforts 
to obtain evidence of previous convictions when he had notice of its existence 
(see Previous Convictions, 16); for failing to introduce proper and sufficient evidence 
(C. M. O. 10, 1912, 8); for stating, after the counsel for accused admitted absence 
as charged, "In view of the statement of the counsel for accused 1 have no evidence 
to put before the court" (C. M. O. 30, 1912, 5); for failing to make a closing argument 



310 JUDGE ADVOCATE, 

to advise the court as to the law when counsel for accused had given an erroneous 
statement of it. (C. M. O. 25, 191 G, 3.) 

While it is not to be expected that officers serving as judge advocates of courts- 
martial shall exhibit a thorough knowledge of complicated or technical rules of evi- 
dence, they are expected to distinguish between evidence which is relevant and 
that which has no connection with the points at issue and to make timely objection 
to the introduction of the latter class. C. M. O. 5, 1913, 11. 

69. Same— Counsel for the accused (an officer who was charged with embezzlement) de- 

livered an argument in defense of the accused, wherein he placed an erroneous inter- 
pretation upon the law governing the case, and the judge advocate not only failed 
to advise the court properly in regard thereto, but submitted the case to the court 
without any remarks. The judge advocate was furnished with a copy of Court- 
Martial Order No. 4, 1913, containing the necessary information regarding the offense 
with which the accused was charged. The judge advocate was under a duty to correct 
the erroneous statements of the counsel and also to place before the court, m an official 
manner through remarks, the correct law which should be applied to the case. Owing 
to the neglect of the judge advocate in failing to advise the court on the points of law 
involved, as shown by the record, the court arrived at an improper rinding. The de- 
partment thereupon returned the case, furnishing the court with the information 
which the judge advocate failed and neglected to supply, and the court in revision 
found the accused guilty of the offense as charged. G. C. M. Rec. 32388. See also 
C. M. O. 25, 1916, 3. 

70. Degree ol criminality — Judge advocate in certain cases should introduce evidence to 

indicate the degree of criminality involved where specification does not show par- 
ticulars of offense, after plea of guilty. See Degree of Criminality Involved, 1. 

71. Deposition— Judge advocate to procure— Necessity of approval by court. See Dep- 

ositions, 3. 

72. Documents — Should not read document in his closing remarks which has not been 

introduced in evidence. See Arguments, 3. 

73. " Drunkenness "—Judge advocate tried by general court-martial. C. M. O. 104, 

1896. See also Alcoholism, 1; Drunkenness, 55. 

74. *' Drunkenness on duty "—Judge advocate tried by general court-martial. C. M. O. 

57, 1880; 2, 1913. 

75. Duty of— The judge advocate is, in his military character as an officer, responsible for 

the proper discharge of his duty to the convening authority. See Judge Advocate, 
59, 113. 

See File 28025-403:3, Sec. Navy, Jan. 2G, 1916, for a decision upon the question as 
to the liability of a Marine judge advocate for duty as officer of the day. 

76. Enlistment record— Procedure in introducing in evidence. See Evidence, Docu- 

mentary, 36, 37, 45; Service Records, 22. 

77. Exceptions— Judge advocate may not enter on record of proceedings. See Excep- 

tions, 2; Judge Advocate, 59. 

78. Evidence — The judge advocate in discharging his duty should present the best evi- 

dence he can and it then rests with the court to determine whether that evidence 
warrants a finding of guilty. (File 26251-10164: 3.) The judge advocate in his duty 
as prosecutor must obtain all evidence available and present such evidence, if it is 
possible, which will warrant a court in legally coming to a rinding of guilty. File 
26251-10164: 3. 

79. Findings— Judge advocate shall be called before the court to record the finding before 

the court proceeds to deliberate upon the sentence, for otherwise the judge advocate 
is prevented, if occasion arises, from advising the court upon any possible irregu- 
larity in the finding before the court proceeds to sentence the accused. C. M. O. 17, 
1910, 10; 23, 1910, 7; 26, 1910, 8; 25, 1914, 6; 6, 1916. 

80. Same— Acquittals shall be recorded in handwriting of judge advocate. See Acquit- 

tal, 17. 

81. Same— The judge advocate shall enter the findings of the court on the record of pro- 

ceedings in his own handwriting. He shall not typewrite them. C. M. O. 155, 1897, 
2; 24, 1909, 3; 37, 1909, 4; 42, 1909, 6; 29, 1914, 5; 42, 1914, 4; 6, 1916. 

82. Same— Alterations in. See Findings, 7. 

83. General court-martial— Judge advocate tried for "Absence from station and duty 

without leave," "Drunkenness," and "Scandalous conduct tending to the destruc- 
tion of good morals." C. M. 0. 104, 1896. See also Alcoholism, 1. 

84. Same— Judge advocate tried for "Drunkenness on duty." C. M. O. 2, 1913. 

85. Same— Judge advocate tried for "Scandalous conduct tending to the destruction of 

good morals." C. M. O. 57, 1880; 104, 1S96. See also Alcoholism, 1. 



JUDGE ADVOCATE. 311 

86. "Guilty"— Should not advise accused to plead "Guilty." C. M. O. 6, 1909, 3. See 

also Advising, 3; Judge Advocate, 34. 

87. Interfering with cross-examination — Judge advocate should not place himself in 

the position of "interfering" with the cross-examination. G. C. M. Rec. 30485, pp. 
361-362. 

88. Interlineations— In findings and sentences. See Findings, 7, 54; Sentences, 9, 52. 

89. Member— Acting as judge advocate. See Judge Advocate, 136. 

90. Minister of justice. See Judge Advocate, 108. 

91. Name— Published in Court-Martial Order. C.. M. O. 38, 1915, 3. 

92. Oath— A judge advocate appointed without change of court must be sworn. CM. O. 

49, 1910, 11-12. 

93. Same — Administers oath to members. See Oaths, 20. 

94. Objected— Judge advocate objected to members of court interfering with him. C. M. 

O. 72, 1895, 2. 

95. Objections— Duty of judge advocate to object to a witness (accused) refusing to 

answer questions without giving any reasons. C. M. O. 17, 1910, 13. See also last 
paragraph of Judge Advocate, 68, holding that judge advocates should make timely 
objections to irrelevant evidence. 
The judge advocate may not be challenged. See Challenges, 5. 

96. Officer of the day— Liability of a Marine judge advocate for duty as officer of the day. 

File 28025-403:3, Sec. Navy, Jan. 26, 1916. 

97. Opinion— Judge advocate may enter on record, if court disregards his advice. C. M. 

0. 17, 1910, 11; 28, 1913, 4; 49. 1915, 11. See also Exceptions, 2; Judge Advocate. 59. 

98. Orders— Where a judge advocate was temporarily appointed such during the tem- 

porary absence of the permanent judge advocate, the department held that upon 
return of the latter, he should resume his duties and that no specific orders therefor 
are necessary, the other judge advocate having been appointed as such merely during 
his absence. C. M. O. 49, 1910, 11. 

99. Same — If the name of the judge advocate is on precept no orders from Marine Corps 

or Bureau of Navigation are essential to entitle the officer to act as judge advocate. 
C. M. O. 28, 1910, 5. See also C. M. O. 49, 1910, 11; Judge Advocate, 101. 

100. Same— Judge advocate shall not act without proper orders from the convening au- 

thority. C. M. 0.26, 1910, 8. 

101. Same— Precept is sufficient authority for judge advocate to act as such. C. M. O. 

38, 1895, 2; 53, 1895, 2. See also Judge Advocate, 99. 

102. Same— Judge advocate appointed without change of court— Procedure. File 26251— 

12159. 

103. Overruled by court— Judge advocate properly objected to letter but court overruled 

him. CM. 0.30,1912, 4. 

104. Precept— Sufficient authority for judge advocate to act as such. C. M. O. 38, 1895, 2; 

53, 1895, 2; 104, 1896, 3-4. See also Judge Advocate, 99, 101. 

105. Presence — Daring "closed court" improper — In case of an officer tried by general 

court-martial it was contended in behalf of the accused that the findings and sen- 
tence be set aside on the ground that " his trial was not a public trial as required 
by law." The facts of the case as claimed by the accused were as follows: "At 
3.22 p. m., December 31, 1914, the president of the court announced that the 
court would adjourn. At this point a member requested that the court be cleared 
but that the judge ad vocate remain that he (the member) desired to address the court 
informally in the presence of the judge advocate." 

Nothing concerning the alleged incident was contained in the record of proceedings 
and the contention of the accused did not state that the request of the member was 
granted and that the judge advocate in fact was present while the court was cleared. 

Assuming, however, that the req uest of the mem ber was granted and t hat l he record 
was incomplete in that it did not record the incident, the defense had the opportunil y 
to have the record corrected when the proceedings of December 31, 1914, were "Mead 
and approved." The accused, who was represented by able counsel at his trial, not 
having objected to the alleged incompleteness of the record at the proper time, is now 
estopped to urge that the record is incorrect. The department therefore declined to 
go behind the record in order to ascertain what were the facts of any alleged incidents 
which it does not disclose. 

Even had the record shown the above occurrence this would not have necessarily 
invalidated the proceedings, as there is no statute in the Navy . as t here is iu t he Arm v. 
providing that the judge advocate shall withdraw when a court-martial shall sit in 
closed session; and the provision of the Navy Regulations to that effect is held bv 



312 JUDGE ADVOCATE. 

the department's precedents to be directory only and not mandatory. Accordingly, 
a disregard of said regulation, while a grave' irregularity, would not necessarily render 
the proceedings invalid. File 26251-9996:2, Sec. Navy, Jan. 15, 1915; C. M. O. 6, 
1915, 6. 

106. Same— Argument by judge advocate during proceedings in revision while accused 

was absent. Department disapproved but on other groimds. C. M. O. 61, 1894, 3. 

107. Procedure irregular and improper— For judge advocate to introduce enlistment 

record and letter while witness is on stand to impeach him. C. M. O. 47, 1910, 5. 
See also Impeachment, 9. 

108. Prosecutor — ''The judge advocate is to regard himself not only as a prosecutor en- 

deavoring to secure a verdict of guilty, but as a minister of justice endeavoring to 
place the whole transaction, with which the accused is charged, in its true light before 
the court and the reviewing authority, in order that justice may be done. It is in 
omitting to bring out in evidence existing matters of defense or extenuation that 
judge advocates are most liable to fail in furthering complete justice." C. M. O. 6, 
1909, 3. 

109. Protest — Improper for judge advocate to enter on record of proceedings. See Excep- 

tions 2. 

110. Record of proceedings— Judge advocate is responsible for correctness of record. 

C. M. O. 27, 1913, 12; 17, 1915, 2: 10, 1916. 

111. Relief — In a general court-martial case returned to the court for revision ? the record 

of proceedings showed that the judge advocate acted during the revision without 
reading the order appointing him having been read and he having been duly sworn. 
When the court reconvened for revision of the case, the orders relieving the old and 
appointing the new judge advocate should have been read and certified copies ap- 
pended to the record. Record should show new judge advocate was sworn. C. M. 
O. 47, 1910, 10. See G. C. M. Rec. 32390, judge advocate relieved during trial ac- 
count illness. 

112. Report of cases delayed over 10 days— "It is a standing order that the judge advo- 

cate report all cases which are delayed 10 days after the charges and specifications are 
received. This is not to be construed as authority to unnecessarily delay trials over 
10 days; all trials should be held as soon as practicable and the judge advocate will 
report in all cases which are not tried within 10 davs after receipt of charges and 
specifications." File 26504-111:329, Sec. Navy, May 4, 1915. See also C. M. O. 20, 
1915, 8. 

113. Reported by president to convening authority— The president of a general court- 

martial may, without impropriety, address to the Secretary of the Navy directly, 
a communication reporting the judge advocate for failure to properly discharge the 
duties of his office. File 5611-97. See also Judge Advocate, 59, 75! 

A judge advocate was reported by the president of a general court-martial to the 
convening authority for "reprehensible carelessness." File 26260-3653. 

114. *' Scandalous conduct tending to the destruction of good morals"— Judge 

advocate tried by general court-martial. C. M. O. 57, 18S0; 104, 1896. 

115. Sentences— Judge advocate must authenticate. CM. O. 30, 1900. 

116. Same — Shall be in handwriting of judge advocate without alterations or interlinea- 

tions. See Sentences, 58. 

117. Service records— Procedure in introducing in evidence. See Evidence, Documen- 

tary, 36, 37, 45: Service Records, 22. 

118. Solicitor— Assigned as assistant and associate for a j udge advocate of a court of inquiry. 

See Counsel, 49. 

119. Statements made to judge advocate out of court— Except under certain unusual 

circumstances, it is not proper for the judge advocate to testify as to statements made 
to him out of court during his preliminary examination of prospective witnesses. 
C. M. O. 211, 1902, 1. 

120. Statement of accused. See Judge Advocate, 35; Statement of Accused. 

121. Trials delayed over 10 days— Shall be reported. See Judge Advocate, 112. 

122. "Trying case out of court "—Judge advocate should not. See Judge Advocate, 

123, 124. 

123. Usurpation of court's functions— Judge advocates should not usurp functions of 

court by weighing evidence outside of court and advising court to accept plea of 
guilty in a less decree than charged. C. M. 0.37, 1909, 8; 30, 1910, 5: 1, 1911, 4; 10, 1912, 
7: 30; 1912, 6; 16, 1913, 4; 34, 1913, 8; 1, 1914, 6; 29, 1914, 6; File 26251-10164:3, Men. 20, 
1915; C. M. O. 42, 1915, 7-8. See also Trying Case Out of Court. 



JUDGE ADVOCATE. 313 

124. Same — Or by weighing evidence in the case as shown by the original papers sent them 

by the department and withholding evidence often of importance and which should 
be submitted to the court for its consideration. C. M. O. 1, 1914, 6. 

125. Same — Court not to usurp the functions of the judge advocate by interfering with his 

primary duty of conducting the prosecution. C M. O. 81, 1897, 2. See also C. M. O. 
72, 1895, 2. 

126. Same— Judge advocate objected to a member asking a certain question "on the ground 

that it brought out new testimony which he did not wish to have introduced by the 
prosecution, that as the court officer authorized to conduct the prosecution he objected 
to the court disturbing the general line adopted by him for the prosecution." Depart- 
ment held that position taken by judge advocate was untenable. CM. O. 72, 1895, 2. 

127. Waiver— Of receipt of record of proceedings should be secured from accused by judge 

advocate. See Record of Proceedings, 32. 

128. Witnesses— The judge advocate should cross-examine witnesses as to character of 

accused. C. M. O. 39, 1915. 

129. Same— Should not assist improperly witnesses while they are testifying. C. M. O. 

49, 1915, 12, 13. 

130. Witness, as— Only witness for prosecution. CM. O. 37, 1909, 9. 

The judge advocate of a general court-martial may legally give testimony before 
the court. It is in general, however, most undesirable that the judge advocate should 
appear in the capacity of a witness, except perhaps where the evidence to be given 
relates simply to the good character or record of the accused. CM O. 14,1911,4-5. 

Judge advocate as witness to introduce service record of accused. See Evidence, 
Documentary, 36, 37, 45; Service Records, 22. 

131. Same— The judge advocate having taken the stand for the defense to testify as to the 

record of the accused, neglected his duty as judge advocate when he failed to cross- 
examine himself to bring out the fact that the accused had been retained in the service 
in his first enlistment 118 days to make good time lost by absence over leave. C.M.O. 
28, 1910, 7. 

132. Same— The record must show that the judge advocate resumed his seat as judge 

advocate after completing his testimony. CM. O. 37, 1909, 9. 

133. Same— Before a witness withdraws from the court room the president shall warn him 

not to converse upon matters pertaining to the trial during its continuance. This 
warning shall be omitted in the case of members, the judge advocate, the accused, and 
counsel if they are called as witnesses. C. M. O. 37, 1909, 9; 15, 1910, 5; 26, 1910, 8; 

31, 1910, 3; G. C M. Rec. 29934. 

134. Same— There is no authorized form of procedure permitting the judge advocate, 

after testifying, to waive the reading and verification of his testimony. C M. O. 
47, 1910, 6. See also Evidence, 131-133. 

135. Same — The judge advocate was called as a witness for the prosecution after the 

examination of one of his own witnesses, and the department remarked: "While 
not expressly prohibited by law or regulation, the appearance of the judge advocate 
of a general court-martial as a witness on the part of the prosecution is regarded as 
generally improper and not to be resorted to in any case where it can be avoided. 
Moreover, whenever it becomes necessary for such officer to testify he should be called 
before the other witnesses for the prosecution. This irregularity was not considered 
sufficient to invalidate the proceedings." C. M. 0. 108, 1899. See also C M. O. 27, 1882. 

136. Same — In a case where the judge advocate was called as a witness and the j unior mem- 

ber of the court acted as the judge advocate, the department stated: " The action of the 
court in requiring one of its members to perform duty as judge advocate is disapproved. 
The power to relieve or appoint a member a judge advocate of a court being vested 
in the convening authority alone, courts-martial are not authorized to appoint or 
assign a member or other person to duty as judge advocate." C. M. O. 27, 1SS2. 

JUDGE ADVOCATE GENERAL. 

1. Acting judge advocate. See Circular, Sec. Navy, July 2, 1878; Circular. Sec. Navy, 

June 28, 1880; An. Rep. J. A. G., 1908, p. 3. 

2. Acting Judge Advocate General— The Secretary of the Navy designates officers o( 

the Navy or Marine Corps on duty in the office of the Judge Advocate General to 
act or perform the duty of the Judge Advocate General, in his absence, and to sign 
as "Acting Judge Advocate General." File 22724-20, Sec. Navy, Deo. 8. 1914: 22724- 

32, Sec. Navy, Aug. 21, 1916. See also Judge Advocate Ceneral, 6. 

3. Same— During the period between June 19, 1878, ami Juno 8, L880, an Acting Judge 

Advocate General attended to the dutiesof the Office of the Judge Advocate General. 
See Judge Advocate General, 18. 



314 JUDGE ADVOCATE GENERAL. 

4. "Any other officer in either department"— These words in R. S. 179 do not apply 

to the designation of an Acting Judge Advocate General. File 22724-20 and 26. 

5. Appointment of — "That the President of the United States be, and he is hereby, 

authorized to appoint, for the term of four years, by and with the advice and consent 
of the Senate, from the officers of the Navy or the Marine Corps, a Judge Advocate 
General of the Navy, with the rank, pay, and allowances of a captain in the Navy 
or a colonel in the Marine Corps, as the case may be. And the office of the said Judge 
Advocate General shall be in the Navy Department, where he sha^l, under the direc- 
tion of the Secretary of the Navy, receive, revise, and have recorded the proceed- 
ings of all courts-martial, courts of inquiry, and boards for the examination of officers 
for retirement and promotion in the naval sen-ice, and perform such other duties 
as have heretofore been performed by the Solicitor and Naval Judge Advocate Gen- 
eral." (Act, June 8, 1880, 21 Stat., 164.) See Judge Advocate General, 18. 

6. Assistant to Judge Advocate General— An officer of the line of the Navy or Marine 

Corps may be detailed as assistant to the Judge Advocate General of the Navy, 
and in case of deathj resignation, absence, or sickness of the Judge Advocate General, 
shall, unless otherwise directed by the President, as provided by R. S. 179, perform 
the duties of the Judeje Advocate General until his successor is appointed or such 
absence or sickness shall cease. (Act, Aug. 29, 1916, 39 Stat., 558.) See File N-31, 
4499-79, Sept. 9, 1916, for first appointment. 

7. Attorney General's opinions— Requests for opinions of the Attorney General must 

be accompanied by the written opinion of the Judge Advocate General or the Solic- 
itor, etc. See Attorney General, 17,18. 

8. Books, law. See Law Books, 1-2. 

9. Civil authorities— Delay in cases, involving delivery of enlisted men to civil author- 

ities, reaching office of the Judge Advocate General. See Civil Authorities, 20, 29. 

10. Civil liability — Of Judge Advocate General. See Legal Liability, 2. 

11. Clerks, extra— During session of Congress. File 26254-1906, J. A. G., Nov. 12, 1915. 

12. Clerk, law — Assigned as counsel to a judge advocate of a general court-martial. See 

Counsel, 39. 

13. Comptroller of the Treasury— Requests for decisions of. See Attorney General, 

17. 18; Comptroller of the Treasury, 12, 14, 15. 

14. Same — All requests for decisions of the Comptroller of the Treasury and other ques- 

tions involving points of law, concerning the personnel, should be referred to the 
department (Judge Advocate General) for action, and not handled by the Bureau 
of Navigation. File 26254-584, Sec. Navy, Dec. 21, 1910; 26254-588, Sec. Navy, Dec. 
21, 1910. See also File 5460-26, Sec. Navy, Jan. 26, 1909; 26516-9, Sec. Navy, Dec. 1, 
1908. 

15. Congress— Extra clerks during session of Congress. File 26254-1906, J. A. G., Nov. 

12, 1915. 

16. Court-martial order— The Judge Advocate General in a certain case suggested that 

the department's views upon the matter contained in his opinion be embraced in 
the court-martial order promulgating the case, for the guidance of general courts- 
martial in future cases where same questions arise. SeeCouRT-MARTiAL Orders, 16. 

17. Duties of— The duties of the Judge Advocate General of the Navy shall be to revise 

and report upon the legal features of and to have recorded the proceedings of all 
courts-martial, courts of inquiry, boards of investigation and inquest, and boards 
for the examination of officers for retirement and promotion in the naval service; 
to prepare charges and specifications for courts-martial, and the necessary orders 
convening courts-martial, in cases where such courts are ordered by the Secretary 
of the Navy; to prepare court-martial orders promulgating the final action of the 
reviewing authority in court-martial cases; to prepare the necessary orders convening 
courts of inquiry in cases where such courts are ordered by the Secretary of the Navy, 
and boards for the examination of officers for promotion and retirement, and for the 
examination of candidates for appointment as commissioned officers in the Navy 
other than midshipmen, and to conduct all official correspondence relating to such 
courts and boards. 

It shall also be the duty of the Judge Advocate General to examine and report upon 
all questions relating to rank and precedence, to promotions and retirements, and to 
the validity of the proceedings in court-martial cases, all matters relating to the 
supervision and control of naval prisons and prisoners; the removal of the mark of 
desertion; the correction of records of service and reporting thereupon in the Regular 
or Volunteer Navy; certification of discharge in tnie name; pardons: bills and reso- 
lutions introduced in Congress relating to the personnel and referred to the depart- 



JUDGE ADVOCATE GENERAL. 315 

ment for report, and the drafting and interpretation of statutes relating to personnel; 
references to the Comptroller of the Treasury with regard to pay and allowances of 
the personnel; questions involving points of law concerning the personnel; proceed- 
ings in the civil courts in all cases concerning the personnel as such; and to conduct 
the correspondence respecting the foregoing duties, including the preparation for 
submission to the Attorney General of all questions relating to subjects coming under 
his own cognizance which the Secretary of the Navy may direct to be so referred. 
(R-134.) File 13673-3866, J. A. G., Aug. 16, 1916. See also File 26262-729: 2, Sec. 
Navy, Jan. 10, 1910; 26262-730: 2; 27231-5; 27231-51: 1, J. A. G., Feb. 24, 1913; 26283- 
522, J. A. G., Feb. 12, 1913; 26837-3:21, J. A. G., Oct. 8, 1914; 26837-3:21, J. A. G., 
Dec. 16, 1914; Telegram signed "Daniels" Op.-9, SD-1641, March 8, 1916, No. 11008, 
re records of military commission, Haiti; Coast Guard, 1; Judge Advocate Gen- 
eral, 5. 

It shall be the duty of the Judge Advocate General to advise the Secretary of the 
Navy on all matters relating to the supervision and control of prisoners of war, of 
vessels and individuals interned under custody of the Secretary of the Navy, and of 
the locality of internment. He shall advise the Secretary of the Navy on all matters 
involving questions of international law and shall conduct the correspondence 
respecting the foregoing duties. (Navy Regulations, 1913, R-134 (3).) See File 
28573-1, Sec. Navy, Dec. 23, 1915. 

18. History of— The act of March 2, 1865 (13 Stat. 468), authorized the President to appoint 

an officer in the Navy Department to be called the "Solicitor and Naval Judge 
Advocate General." The appointee, pursuant to this act, was carried on the Navy 
Register until 1870, when the Department of Justice was established. The act estab- 
lishing the Department of Justice (June 22, 1870, 16 Stat. 162) provided that "the 
Solicitor and Naval Judge Advocate General, who shall hereafter be known as the 
Naval Solicitor," should be transferred to the Department of Justice. The incum- 
bent's name was then dropped from the Navy Register and placed upon the rolls 
of the Department of Justice. This office of the Naval Solicitor as it existed under 
the Department of Justice (R. S. 349) was unsuited to the requirements of the naval 
service. After that office was abolished [act June 19, 1878, 20 Stat. 205] and prior to the 
establishment of the Office of the Judge Advocate General [act June 8, 1880, 21 Stat. 
164] an officer was detailed as Acting Judge Advocate General. File 13673-3866, 
J. A. G., Aug. 16, 1916. 

The Office of the Judge Advocate General was established by the act of June 8, 1880 
(21 Stat., 164). The Office of Naval Solicitor in the Department of Justice was 
abolished by act of June 19, 1878 (20 Stat., 205). The duties of the "Acting Judge 
Advocate" were prescribed in a department circular dated July 2, 1878. On June 
28, 1880, after the establishment of the Office of the Judge Advocate General, the 
above-mentioned circular was rescinded and on the same date, by General Order No. 
250, the duties of the Judge Advocate General were defined. The duties therein 
generally outlined have been gradually amplified and are set forth in detail in Navy 
Regulations, 1905, R-12 (Navy Regulations, 1913, R-103 (3); R-134). 14 J. A. G., 
111J, Apr. 22, 1909. 

19. International law— Questions arising under. See Judge Advocate General, 17. 

20. Interpretation of statutes— The interpretation of statutes not relating to the personnel 

is not one of the duties of the Judge Advocate General as defined by the Navv Regu- 
lations. Such comes under the jurisdiction of the Solicitor. File 244S2-34, J. A. G., 
May 1, 1911, p. 3. See also An. Rep., J. A. G., 1916, p. 17. 

21. Law clerk— In office of Judge Advocate General assigned as counsel to a judge advocate 

of a general court-martial. See Counsel, 39. 

22. Law officer of the Navy. See Attorney General, 17, 18. 

23. Law, questions of. See Coast Guard, 1; Judge Advocate General, 14. 17; 

Questions of Law. 

24. Legal liability— Of Judge Advocate General. See Legal Liability, 2. 

25. Mail— Delay in mail reaching Office of Judge Advocate General from Secretary's office. 

See Mall, 2. 

26. Navy Regulations— Interpretation of. See Attorney General, 13: Judge Advo- 

cate General, 14, 17. 

27. Office of the Judge Advocate General— Established by act of June 8, 18S0 (21 Slat. 

164). G. O. 250, June 28, 18S0. Secalso Judge Advocate General, 18. 

28. Same— The current work in the Office of the Judge Advocate General is amplv suffi- 

cient to keep the entire office force therein busy. Therefore, the department has 
adopted the policy of not answering hypothetical questions. C. M. O. 22, 1915, 8. 



316 JUDGE ADVOCATE GENERAL. 

29. Same— "Knowledge of the law and other qualifications of a high order are necessary 

to meet the requirements of the work of the Office" of the Judge Advocate General. 
13 J. A. G., 369, Sept. 30, 1904. 

30. Opinions and decisions defined— When the Judge Advocate General renders an 

opinion, he states his inference or conclusion of what, in contemplation of law, would 
or should follow from a given state of facts, and where an opinion of the Judge Advo- 
cate General is received, it may be followed, or not, in the judgment of the person 
whose duty it is to act in the premises. 

A decision is a ruling, or command, that certain things shall follow from a given 
state of facts, and departmental decisions are made by the head of the department. 
Where a decision has been rendered in any case by the Secretary of the Navy, it is 
an authoritative ruling or instruction which has all the force and effect of an order or 
command. 

As with court decisions, so with departmental decisions, there may be presented 
with the decision an opinion or statement of the reasons which influenced the head of 
the department in arriving at his conclusions and which influenced him in rendering 
his decision, while in other cases the decision may stand alone. In either case, it is 
the decision and not the opinion, which is binding upon all persons in the Naval 
Establishment whose cases come within its terms. 

The Judge Advocate General does not render decisions, and the Secretary of the 
Navy does not render opinions the former renders opinions and the latter, decisions. 

Where an authoritative ruling, which will have the force and effect of an order or 
command is desired, a decision should be requested and this would refer to a decision 
of the department. Where advice upon legal questions is deemed desirable, an 
opinion oi the Judse Advocate General should be requested. File 13673-3897, J. A. G., 
Oct. 31, 1916; C. M. O. 37, 1916. 

31. Pardons— Requests for pardon, and similar matters— Questions of this character to 

be referred to the department (Judge Advocate General) by Bureau of Navigation 
with appropriate recommendation. File 26516-9, Dec. 1, 1908. See also File 26251- 
7738, J. A. G., Sept, 23, 1913. 

32. Questions of law— The duties of the Judge Advocate General as defined by Navy 

Regulations, 1913, R-134 (2) include all " questions involving points of law concerning 
the personnel." See Coast Guard, l; Judge Advocate Geneeal, 14, 17; Ques- 
tions of Law. 

33. R. S. 179. See Judge Advocate General, 4, 18. 

34. R. S. 349. See Judge Advocate General of the Navy, 18. 

35. " Solicitor and Naval Judge Advocate General." See Judge Advocate General, 

18. 

36. " Solicitor in the Office of the Judge Advocate General"— Has represented the 

United States in the Supreme Court (U. S. v. Smith, 197 U. S. 386). See File 469-1904. 

37. Same— The Office of the Naval Solicitor in the Department of Justice was abolished 

by act of June 19, 1878 (20 Stat., 205). 

The Office of the Naval Solicitor was established by the act of July 1, 1908, by sepa- 
rating the clerical force of the Office of the Judge Advocate General and assigning it 
to two offices, viz, the Office of the Judge Advocate General and the Office of the 
Solicitor. When this was done, the duties of the two offices were promulgated to the 
service by G. O. No. 72, June 17, 1908. The duties as laid down in that order have 
been embodied in Navy Regulations, 1909, R-12, 13. (Navy Regulations, 1913, 
R-103 (4); R-117). 14 J. A. G., llli, Apr. 22, 1909. 

38. Same— Recommendations upon the matter of combining the offices of the Judge 

Advocate General and Solicitor. 14 J. A. G., 1114, Apr. 22, 1909. 

39. Statutes— Interpretation of. See Judge Advocate General, 20. 

40. Title— The title of the "Judge Advocate General" is such and not "Judge Advocate." 

File 7657-103:2, J. A. G., July 18, 1911. See also C. M. O. 41, 1916, 6. 

41. Useless papers— Destroyed. File 14287-20, J. A. G., Nov. 4, 1915. 

JUDICIAL NOTICE. See also Statutes, 10. 

1. Absence of accused— The court should take judicial notice of the fact that the accused 

was four hundred miles from his station and duty when his leave expired. C. M. O. 
14, 1914, 4. 

2. Court-martial orders. See Court Martial Orders, 27. 

3. Days of the week — Counsel for the accused asked the court to take judicial notice of 

the fact that certain dates came on certain days of the week. G. C. M. Rec. 30485, p. 664= 

4. Definition. See Words and Phrases. 



JUDICIAL NOTICE. 317 

5. Laws 'Of a State— Naval court-martial must take judicial notice of the law of a State 

which is pertinent to a case on trial, without such law having been referred to in evi- 
dence. C. M. O. 27, 1913, 8. 

6. Manual of Interior Guard Duty, United States Army, 1914— Court may take 

judicial notice of. C. M. O. 49, 1915, 12, 13. 

7. Navy Regulations — The Navy Regulations may be taken judicial notice of by a 

court-martial. C. M. O. 23, 1911, 3; 4, 1916, 3; 19, 1916; File 26251-11960, Sec. Navy, June 
23, 1916; 26251-12309, J. A. G., Oct. 24, 1916, p. 3; 26251-12159; See also Statutes, 10. 

8. Negotiable instruments— The court should take judicial notice of the fact that it is 

customary in business transactions to include the agreement as to interest in the 
body of a negotiable instrument, particularly in a State where the law does not pro- 
vide for the payment of interest in the absence of such agreement. CM. O. 27, 1913, 
7-8. 

9. Public statutes. See Fraud, 5; Statutes, 10; File 26251-12159. 

10. Specification — In certain cases must allege an offense of which judicial notice can be 

taken. C. M. O. 33, 1914, 6. See also Charges and Specifications, 103. 

11. State* laws — Naval courts-martial must take judicial notice of a State law which is 

pertinent to a case on trial. CM. O. 27, 1913, 8. 

"JUDICIAL QUESTION." 

1. Secretary of the Navy— Not authorized to decide. C M. 0. 42, 1915, 14. 

2. Sunday ball playing— At the Philadelphia Navy Yard. See Sunday Laws. 

3. Voting — Right of officers and enlisted men to vote in a certain State is a "judicial 

question." See Voting, 7. 

JUMPING SHIP. See Jeopardy, Former, 44. 

JUNIOR OFFICERS INVESTIGATING SENIORS. See Boards of Investiga- 
tion, 12. 

JURISDICTION. 

1. Academic Board, Naval Academy. See Academic Board of the Naval Academy. 

2. Accounting officers' jurisdiction— In death gratuity cases. See Death Gratuity, 1. 

3. Army court-martial— None shall be held on board a naval vessel. See Army, 7. 

4. Same— Enlisted men while being transported on board an Army transport shall not 

be tried by Army courts-martial. See Army, 7. 

5. Same— Marines serving with Army. See Marines Serving with Army. 

6. Army transport. See Army, 7. 

7. Auditor for the Navy Department. See Auditor for the Navy Department, 5. 

8. Bail, on — An enlisted man released by Federal civil authorities on bail should not be 

placed under restraint upon returning to naA T al jurisdiction, unless he is not to be 
tried in the civil court, since such court has adequate power to cause his appearance 
when required. File 26283-281, June 27, 1911. See also Bah, 1, 2; Civil Authorities, 
31; General Order No. 121 Sept. 17, 1914, 14. 

9. Boston Navy Yard. See U. S. v. Travers, 28 Fed. Cas. 16537. 

10. Same— Naval vessel in Boston Harbor. (See U. S. v . Bevans, 3 Wheat. 336) 14 J. A. 

G. 187, Aug. 4, 1909. 

11. Cavite, P. I.— Offense committed on board a naval ship at Cavite, P. I. File 26524-19, 

Sec. Navy, Oct. 26, 1910. 

12. Ceded land— Exclusive in U. S. only when so provided. File 6769-21, J. A. G., July 

19, 1911, pp. 8, 10, 11, 33; 15 J. A. G. 424, 426. 427, 449. 

13. Chelsea, Mass.— Marine Hospital. See U. S. v. Davis, 25 Fed. Cas. 14930. 

14. Chiefs of bureaus in Navy Department— Are subject to jurisdiction of naval 

courts-martial (18 Op. Atty. Gen. 176). See C. M. 0.8, 1886. 

15. China— Murder outside of Peking, China. See Murder, 9. 

16. Civil authorities— Unjust arrest of an enlisted man by a police justice for contempt 

of court. File 7657-330. 

17. Same— Delivery of enlisted men to. See Civil Authorities, 8, 11, 12, 16, 19, 20, 42, 

48, 50; General Order No. 121, Sept. 17, 1914. 

18. Civil courts— Reviewing naval courts-martial trials— For list of decisions of Supreme 

Court in reference to civil courts reviewing trials by naval general courts-martini. 
see File 26262-1625:8, Sec. Naw. See also Dynes v. Hoover. 20 How. 65; Er parte 
Milligan, 4 Wall. 2; Wise v. Withers, 3 Cranch, 330; Ex parte Reed. 100 U. S. 13: Ex 
parte Mason, 105 U. S. 696; Keves v. U. S., 109 U. S. 336; Wales v. Whitney. 114 U. S. 
564; Moffltt v. Kurtz, 115 U. S. 487; Smith v. Whitney, 116 U. S. 167; In re Qrimley, 
137 U. S. 147; U. S. v. Fletcher, 148 U. S. 84; Johnson v. Savre, 15S U. S. 109; Svaim 



318 JURISDICTION. 

v. U. S.. 165 U. S. 553; Carter v. Roberts, 177 U. S. 496; Carter v. McClaughry, 183 U. 
S.365. ' 

19. Commandants of naval stations. File 26812; 4469, Mar. 22, 1906. See also Official 

Channels, 1. 

20. Comptroller of the Treasury. See Comptroller of the Treasury. 

21. Concurrent jurisdiction — Where the same act constitutes an offense under a State 

law, as well as an offense under a law of the United States, the State court has juris- 
diction to punish the offense under its law, as has also the Federal court. (Fox v. 
Ohio, 5 How., 433; U. S. v. Marigold, 9 How., 569; Moore v. Illinois, 14 How., 19; 
Ex parte Siebold, 100 U. S., 390: Cross v. North Carolina, 132 TJ. S., 131.) 14 J. A. G. 
188, Aug. 4, 1909. See also Jurisdiction, 71; Jeopardy, Former, 46. C. M. 0. 7, 1914, 
10; File 26251-12159, p. 22. 

22. Coroners— If a death occurs upon lands over which the United States has exclusive 

jurisdiction, and such death was not caused by any act within the acknowledged 
jurisdiction of the State within whose boundaries such land is situated, then a coroner 
could have no jurisdiction in the matter and could not, under the reserved right of 
the State to serve process upon such lands, come upon them and hold an inquest. 
Furthermore, such a proceeding would be of no use as a step in the criminal procedure 
of the State, because the State would have no jurisdiction to try the offender. But 
if the body of a drowned person were found in waters within the limits of a navy 
yard, and no drowning had occurred at the yard, it would be proper to allow the 
coroner to hold an inquest. Where a person in the naval service who has been injured 
outside the navy yard, returns thereto and dies from the injury, the coroner if he 
should so desire should, be permitted to hold an inquest, because the injury was 
inflicted or occurred while the deceased was within the jurisdiction of the State. 
In proper cases, and when thought advisable, but as not establishing a precedent or 
as acknowledging any jurisdiction of the State to do so, a coroner might be allowed, 
as a matter of courtesy, to come into a navy yard to hold an inquest; but before per- 
mitting such action, the commanding officer or commandant should feel convinced 
that such a course would be advisable or accomplish some desirable end. File 6769-21, 
J. A. G., July 19, 1911, pp. 29-33. See also Jurisdiction, 85. 

23. Same— A coroner has the right to hold an inquest in case of accident resulting in death, 

occurring within the limits of a naval reservation where concurrent jurisdiction 
exists. File 3727-97, quoted in File 6769-21, J. A. G. ; July 19, 1911, p. 30. See also 
Jurisdiction, 85. 

24. Same — In the case of an enlisted man of the Navy killed on board a battleship at the 

navy yard, Philadelphia, Pa., the coroner attempted to hold an inquest outside 
the yard and applied for delivery of the enlisted man charged with the homicide and 
against whom court-martial proceedings had been commenced. On advice of the 
Department of Justice this application was denied. File 6674-29, April, 1907. See 
also Jurisdiction, 105; Murder, 22-24. 

25. Courts of inquiry. See Courts of Inquiry. 

26. Courts-martial— "Under every system of military law, for the government of either 

land or naval forces, the jurisdiction of courts-martial extends to the trial and punish- 
ment of acts of military or naval officers [and enlisted men] which tend to bring 
disgrace and reproach upon the service of which they are members, whether those 
acts are done in the performance of military duties, or in a civil position, or a social 
relation, or in private business." (Smith v Whitnev, 116 U. S. 168, 183.) [An. Eep. 
J. A. G., 1915, p. 13; File 26251-12159, Sec. Navy, Dec. 9, 1916, p. 18.] 

" It is not possible for an officer to do any act punishable by the known laws of the 
land, however foreign that act may be to his duties or immediate relations as a soldier, 
which shall not be cognizable by court-martial; that to commit a crime of any sort is, 
to say the least of it, in general, unofficerlike and ungentlemanly conduct; that as a 
general proposition it is the part of an officer and a gentleman to observe the laws of 
his country, and for not doing it he would in most cases be censurable and in all his 
conduct would be lawfullv subject to military inquiry." (6 Op. Atty. Gen. 413.) 
See File 5252-74:14, 1915; 26251-9965:17 J. A. G., Aug. 31, 1915. 

27. Same — Review of naval courts-martial trials by civil courts. See Jurisdiction, 18. 

28. Same — Courts-martial form no part of the judicial system of the United States, and 

their proceedings, within the limits of their jurisdiction, can not be controlled or 
revised by the civil courts. (Dynes v. Hoover, 20 How. 65; Ex parte Mason, 105 
U. S. 696; Wales v. Whitney, 114 U. S. 564; Kurtz v. Moffitt, 115 U. S. 500.) A naval 
court-martial is a branch of the executive department of the Government. See 
Jurisdiction, 37. 



JURISDICTION. 319 

The decisions of naval courts-martial are not subject to review on the questions of 
conduct to the prejudice of good order and discipline or conduct unbecoming an 
officer and a gentleman. (Carter v. McClaughry, 183 U. S., 400; U. S. v. Fletcher, 
148 U. S., 84.) G. C. M. Rec. 30485, pp. 768-769. 

29. Same— A naval court-martial is a court of limited jurisdiction. C. M. O. 49, 1910, 9; 

14, 1910, 8; 15, 1910, 9. See also Court, 104; Evidence, 21; Jurisdiction, 73. 

30. Same — Dissolved, no jurisdiction to revise its proceedings in a former case tried by it. 

See Court, 69, 70; Jurisdiction, 115; Revision, 13. 

31 . Same— Convened on foreign territory. See Jurisdiction, 53. 

32. Same— After expiration of enlistment. See Enlistments, 8; Jurisdiction, 48, 52. 

33. Same — Naval court-martial may try person subject to its jurisdiction for any offense 

committed in the scope of legally assigned duties— The record of the general court- 
martial in the case of an enlisted man who was tried by order of the commandant 
of the naval station, Guam, shows that the accused, when arraigned, entered a plea 
to the jurisdiction of the court based, inter alia, upon the grounds that the offenses 
alleged against him were not military charges but were founded upon an alleged viola- 
tion of the laws of Guam; and that any crime for which he could be tried must be a 
military offense. The court sustained the plea to the jurisdiction and submitted the 
record to the convening authority, who directed the trial to proceed. 

The plea of the accused to the jurisdiction in this case was without foundation. 
The decisions of courts show that the essential features, in addition to being legally 
constituted, to give a general court-martial jurisdiction in a case similar to that of the 
accused are, (a) that an accused shall belong to an organization whose members are 
subject to trial by a naval court-martial, and (b) that the offense alleged against 
him must be one recognized by either the laws regulating civil society or the laws 
for the government of military forces. (Ex parte Mason, 105 U. S. 700; Smith v. 
Whitney, 116 V. S. 183; Ex parte Milligan, 4 Wall. 123.) In this case the accused 
was charged with having aided in the violation of the liquor laws of Guam, which laws 
it was his duty, as acting chief of police of that island, to enforce. There can be no 
question as to the jurisdiction over the person of the accused, nor did the accused 
contend that the act committed by him was not in violation of the duly authorized 
laws of the island of Guam. Inasmuch as the offense with which the accused was 
charged was committed in the scope of his duties as acting chief of police of Guam, and 
as this duty was assigned by competent authority and was a duty which could legally 
be assigned to the accused, there can be no doubt but that his misconduct in the 
execution of such duty constituted a military delinquency and as such came under 
the cognizance of a naval court-martial the same as would an offense committed by the 
accused in the course of duties ordinarily prescribed. (See 6 Op. Atty. Gen. 415.) 
G. C. M. Rec. No. 31819; C. M. O. 9, 1916, 5-6. 

A man while in desertion was convicted by the civil authorities for an offense and 
by them placed on probation. He then returned to naval jurisdiction. Held: That 
a " general court-martial will not be ordered by the department at this time. File 
26251-5566, Sec. Navy, Jan. 3, 1912. 

34. Same — Courts-martial other than naval can not convene on vessel of regular Navy — 

Naval Militia officers can not convene State courts-martial on board a vessel of the 
regular Navy in the service of the United States; as the established policy of this Gov- 
> eminent, expressed in Navy Regulations which have been approved by Congress 
and are still in effect, does not permit any other than a naval court-martial to beheld 
on board a naval vessel. (Citing Navy Regulations, 1913, R-3845; Navy Retaliations, 
1870, R-987; sec. 1547, R. S.) This policy has its origin in the customs and refla- 
tions of the British Navy. (Citing McArthur on Courts-Martial, 1813, vol. 1, p. 205.) 
File 3937-107, Feb. 16, 1915. See also Naval Militia, 38. 

35. Same— Errors in procedure of naval court s-martial— Can not be reviewed bv civil courts. 

(See In re McVey. 23 Fed. Rep. 878; Ex parte Dickev, 204 Fed. Rep. 322; Ex parte 
Tucker, 212 Fed. Rep. 569; Ex parte Reed, 100 U. S. 23. ) 

36. Same— Sufficiency of charges and specifications can not be reviewed bv civil courts. 

(Ex parte Dickey, 204 Fed. Rep. 322; Carter v. McClaughrv. 183 U. S. 355, 400: Swairn 
v. U. S., 165 U. S. 553; Smith v. Whitney, 116 U. S. 178f U. S. v. Fletcher, 148 U. S. S4.) 

37. Same— " Courts-martial form no part of the judicial svstem of the United States, and 

their proceedings, within the limits of their jurisdiction, can not be controlled or 
revised by the civil courts." (Dynes v. Hoover, 20 How. 65; Ex parte Mason, 105 I'. 
S. 696; Wales v. Whitney, 114 U. S. 564; Kurtz v. Moifitt. 115 U. S. 5090 

A naval court-martial is a branch of the Executive Department and not of the 
Judicial Department of the Government. C. M. O. 24, 1914, 19. See ateo Court, 82, 
113; Jurisdiction, 28. 

50756°— 17 21 



320 JURISDICTION. 

38. Same— Sentence— When affirmed by the military tribunal of last resort, the sentences 

of naval courts-martial can not be revised by the civil courts save only when void 
because of an absolute want of power. See Carter v. McClaughry, 183 U. S. 380. 

39. Same— The following is quoted from the civil court's opinion in the case of a naval 

general court-martial prisoner: "The case before me shows that the court-martial 
under which the petitioner was tried was properly constituted; that the charge and 
specification were in due form, and authorized under the Regulations for the Gov- 
ernment of the Navy; that the trial court had jurisdiction of the case, and of the sub- 
ject matter of the charge; and acted within the scope of its lawful authority; that it 
also acted within its authority in imposing sentence; that such sentence was duly 
approved by the commander-in-chief of the Atlantic Fleet, by whom the court was 
convened; that it was also approved by the Secretary of the Navy, the final review- 
ing authority provided by law to act upon records of courts-martial, in cases which 
do not extend to the loss of life, or to the dismissal of a commissioned or warranted 
officer; that the sentence, therefore, can not be revised by the civil courts." (Ex parte 
Dickey, 204 Fed. Rep. 322.) See File 26262-1625:20. 

40. De facto enlisted men. See De Facto, 2; Honorable Discharge, 3. 

41. Death gratuity. See Death Gratuity. 

42. Deck courts. See Deck Courts, 29. 

43. Decorations — From foreign governments. See Decorations, 2. 

44. Detention barracks' commanding officer. See Detention Barracks. 

45. Dismissed officers. See Jurisdiction, 97. 

46. Divested. See Jurisdiction, 97. 

47. Double jeopardy. See Jeopardy, Former. 

48. Enlistment, expired — Trial of man after expiration of enlistment— It has further been 

held and is now settled law in regard to military offenders in general that if the 
military jurisdiction has once duly attached to them previous to the date of the 
determination of their legal period of service, they may be brought to trial by genera 
court-martial after that date,their dischargebeing meanwhile withheld. This principlel 
has mostly been applied to cases where the offense was committed justpri or to the 
end of the term. It is held therefore that if before the day on which his servicelegally 
terminates and his right to a discharge iscompletethe proceedings with a view to 
trial are commenced against him— as by an arrest or the serving of charges — the 
military jurisdiction will fully attach and once attached maybe continued by a trial 
by a court-martial ordered and held after the end of thetermof the enlistment of the 
accused. File 26251-9965, J. A. G., Jan. 28, 1915. See also Jurisdiction, 52, 97. 

49. Exclusive jurisdiction of the United States. See File 3818, J. A. G., June 27, 

1906. See also 26 Op. Atty. Gen. 91; File 4143-04; 3863-04; Jurisdiction, 119, 120, 122. 

50. Same — In some cases offenses committed by persons in the naval service are cognizable 

exclusively by naval courts-martial, as, for example, where the offense is a purely 
military one, such as "Desertion" or "Fraudulent enlistment," which no civil court 
has jurisdiction to try. (File 5252-74: 14, 1915), or " Falsehood" (File 26251-12159). 

51. Executive department— A naval court-martial is a branch of the executive, not of the 

judicial, department of the Government. See Court, 82, 113; Jurisdiction, 37. 

52. Expiration of enlistment, trial after — The Articles for the Government of the Navy 

provide: 

"And if any person, being guilty of any of the offenses described in this article 
while in the naval service, receives his discharge, or is dismissed from the service, 
he shall continue to be liable to be arrested and held for trial and sentence by a court- 
martial in the same manner and to the same extent as if he had not received such 
discharge nor been dismissed." (A. G. N. 14.) See also In re Bogart, 3 Fed. Cas. 1596. 

When the jurisdiction of a court attaches in a particular case by the commencement 
of proceedings and arrest of accused, it will continue for all purposes of trial, j udgment, 
and execution. See File 26251-5447, Dec. 8, 1911. See also R. S. 1422 as amended by 
act Mar. 3, 1875 (18 Stat., 484); File 26504-102, J. A. G., Mar. 1, 1910, holdingthat the 
Navy Department has authority to retain a general court-martial prisoner to serve 
out his sentence after his enlistment has expired and he has been given a discharge 
from the service. He is not held by the contract of enlistment, but under sentence 
of a court. He is a military prisoner though he has ceased to be an enlisted man 
of the naval service (Carter v. McClaughry, 183 U. S. 365). See also Breaking 
Arrest, 3. 
63. Foreign country— When United States forces have landed in foreign territory for 
military purposes, that part of the foreign territory actually occupied by such forces 
is not subject to foreign jurisdiction within the meaning of Navy Regulations, 1913, 



I 



JURISDICTION. 321 

R-763, which provides that "no naval general court-martial, or other assembly of 
a judicial character, shall be ordered or permitted to assemble or conduct any part of 
its proceedings in any place subject to foreign juridsiction." (See Harwood, p. 57.) 
File 26504-254, J. A. G., Oct. 26, 1915; C. M. O. 42, 1915, 10. (Haiti.) 

A court of inquiry was ordered to convene on board the U. S. S. Hancock, at Santo 
Domingo City, D. R., or such other places as the court in its judgment may deem 
desirable and advisable. File 28028-245, Sec. Navy, Sept. 2, 1916. See also Juris- 
diction, 128. 

54. Same — Where a naval court-martial was held in a place subject to foreign jurisdiction, 

the proceedings were disapproved. (Harwood, p. 57.) See C. M. O. 42, 1915, 10; 
Jurisdiction, 53. 

55. Former jeopardy. See Jeopardy, Former. 

56. Fraudulent enlistment — A man fraudulently enlisting is subject to jurisdiction of 

a naval court-martial. See Fraudulent Enlistment. 

57. General courts-martial — Convened on foreign territory. See Jurisdiction, 53. 

58. General Order No. 121. See General Order No. 121, Sept. 17, 1914. 

59. Goat Island. File 4778-95, Sec. Navy, Dec. 9, 1916. 

60. Guam. See Banishment, 1; Jurisdiction, 33. 

Jurisdiction of civil and naval courts. File 9463-03. See also Guam, 5; Jurisdic- 
tion, 33. 

61. Same — Naval court-martial may try an enlisted man for violations of laws of Guam. 

See Jurisdiction, 33. 

62. Haiti— Convening of general courts-martial and courts of inquiry. See Jurisdiction, 53. 

63. Indian Head, Md. — Naval proving ground. See Jurisdiction, 83,84. 

64. Insular authorities. See Jurisdiction, 11, 94, 106, 108. 

65. Isthmian Canal Zone— An enlisted man on board a naval vessel at anchor off Cris- 

tobal, Isthmian Canal Zone, Panama, did, feloniously and wilfully, strike, stab, and 
cut another enlisted man attached to the same vessel with a knife, inflicting a mortal 
wound, of which wound said enlisted man died. G. C. M. Rec. 27005. See also File 
26251-7593, J. A. G., Apr. 30, 1913. 

66. Japan— Civil and naval authorities. See File 5542-00. See also Treaties. 

67. Jeopardy, Former. See Jeopardy, Former. 

68. Judicial department— A naval court-martial is not a branch of the judicial department 

of the Government. See Court, 82, 113; Jurisdiction, 37, 51. 

69. Key West. See File 26812-7, Sec. Navy, Aug. 19, 1915. 

70. Lack of— Where there is a want of jurisdiction apparent upon the record the pro- 

ceedings of the court are not valid. C. M. 0. 14,1911,3. 

71. Lands leased or rented to the United States— " Ordinarily the United States. 

does not possess exclusive jurisdiction over lands leased or rented to the United States. 
(See U. S. v. Tierney, 28 Fed. Cas. No. 16517; 6 Comp. Dec. 877). File 7940-349, 
Sec. Navy, Oct. 17, 1916. 

72. Letter ol transmittal— Gives court jurisdiction over the person named therein. 

C. M. O. 8, 1911, 6. See also Letters, 28-30. 

73. Limited jurisdiction— A naval court-martial is a court of limited jurisdiction. See 

Court, 104; Evidence, 21; Jurisdiction, 29. 

74. Manslaughter. See Manslaughter; Murder. 

75. Marine battalion afloat— A regulation prescribing that the relations between the 

commanding officer of a marine battalion embarked on board an armed transport 
of the Navy and the naval commanding officer of the latter shall be the same, as 
nearly as possible, as those existing between the commanding officer of marines at a 
navy yard and the commandant thereof, so far as it relates to the administration of 
punishments and the convening of summary courts-martial and deck courts, would 
be contrary to law. 15 J. A. G. 454. But see Jurisdiction, 76; Summary Courts- 
Martial, 22. 

76. Same — When a force of marines is embarked on a naval vessel, or vessels, as a separate 

organization, not a part of the authorized complement thereof, the authority and 
powers of the officers of such separate organization of marines shall be the same as 
though such organization were serving at a navy yard on shore, but nothing herein 
shall be construed as impairing the paramount authority of the commanding officer 
of anv naval vessel, over the vessel undor his command and all persons embarked 
thereon. (Act, Aug. 29, 1916, 39 Stat. 586.) 

77. Marine brigade, Philippine Islands. See File 21277, Sec. Navy, Mar. 31, 1906. 

See also File 5530. J. A. G. - 



322 JUKISDICTIOX. 

78. Marines serving with Army— A marine having committed an offense wnile detached 

for service with Army was returned to jurisdiction of Naw and tried by naval general 
court-martial. Held, that naval court-martial was without jurisdiction and that 
prisoner is entitled to release in habeas corpus proceedings. C. M. O. 31, 1915, 6. 
See also Marines Serving with Army, 7. 

79. Same— Sentence imposed by Army court-martial, mitigated by President after return 

of accused to naval iurisdiciion. See Marines Serving with Army, 6. 

80. Military offenses. See Jurisdiction. 26, 50. 

81. Murder. See Jurisdiction, 90, 94, 102; Manslaughter; Murder. 

82. Naval Militia. See Naval Militia. 

83. Naval proving ground, Indian Head, Md. See File 6692-233; 6769-21; 7001; 7101-6, 

March, 190S; 7101-9; 7101-10, Apr. 17, 1908; 9212-72, J. A. G., Apr. 19, 1916; 26283-988:2. 

84. Same — In an opinion rendered by the attorney general of the State of Maryland, 

February 7, 1916, it was held that the United States unquestionably have exclusive 
jurisdiction over the Naval Proving Ground, Indian Head. Md., except for the right 
of the State to execute process upon the reservation for offenses committed outside, 
but the State has no right to punish offenses committed in the reservation. See 
File 6692-233:7. 

85. Naval reservations— Coroners have a right to hold an inquest in case of accidental 

death occurring within the limits of a naval reservation where concurrent jurisdiction 
exists. File 1766-03: 3726-97; 7101. See also Jurisdiction, 22-24. 

The punishment of offenses committed on lands used for public purposes, the 
punishment of which is not provided for by any law of the United States, shall be 
the same as provided bv laws of the State in which situated. Section 2S9. Pri min g 
Code, act Mar. 4, 1909 (35 Stat., 1145). See File 4143-04; 5103-164:4. 

Right of a collector of customs to enter upon a naval reservation without assent of 
commandant. File 3312-04, 3377-04, J. A. G., Apr. 14, 1904. 

86. Naval stations— Marine officers' right to command. File 5530, Nov. 8, 1906. 

87. Naval training station, Great Lakes, 111. File 14560-174; 20250-331, Feb. 24, 1912. 

88. Naval vessels. See General Order Xo. 121, Sept. 17, 1914. See also File 7204:1, 

Sept. 13, 1907; Murder. 8, 16, 21, 22-28. 

89. Navy mail clerks. See File 753S-74; 26283-524:1; 7538-142, J. A. G., Dec. 3, 1913; Ct. Inq. 

Pec. 5698. See also Mail Clerks. 

90. New London, Conn. — An enlisted man of the Navy committed an assault upon 

another enlisted man on board a naval vessel which was under way in the Thames 
River, opposite New London, Conn. Man was removed to naval hospital, where he 
died. Attornev General held that the accused might be tried by naval court-martial 
under A. G. N.*22. (Op. of Attornev General, Nov. 15, 1880.) G. O. 259, Jan. 25, 1881. 
See also 14 J. A. G., 188; 16 Op. Atty. Gen., 578. 

91. New York Navy Yard— Civil or criminal by State or municipal authority in navy 

yards. Held, first: That the reservation of "the power in the State of New York to 
serve civil or criminal processes within the ceded limits does not empower the State or 
municipal authorities forcibly to take possession of persons in the naval service within 
such limits, subject to the qualification that in order that such service of process 
may not interfere with the operation of the Federal Government, the person deputed 
to perform that duty should first obtain the permission of the commandant, and such 
permission should only be withheld upon the most forcible and cogent reasons of 
public necessity. Second: The reservation of this power to the State applies equally 
to the apprehension of civil employees, whether classified or unclassified, with the 
same qualification as stated above. Third: A similar answer is also given in the 
case of a vessel permanently stationed at navy yards. Fourth: In all cases, however, 
this reservation of power to the State of New York, has no application to offenses 
committed within the limits of the navy yard. File 6769-21. J. A. G., July 19, 1911. 
The coroner is wholly without jurisdiction to conduct an investigation of deaths 
occurring within the New York Naw Yard and his subpoenas in such a case are of no 
legal force. File26283-9SS:5, Sec. Naw, Feb. IS, 1916. 

92. Same— Naval vessel in Wallabout Bav at Cob dock. See U. S. v. Carter (84 Fed. 

Rep. 622 quoted in File 6769-21, J. A. G., July 19, 1911, p. 35. See also Murder, 26. 

93. Norfolk, Va.— Navai vessel at naw vard, Norfolk, Ya. (See Western Union Tel. Co. 

v. Chiles, 214 U. S. 274.) See File'6769-21, J. A. G., July 19, 1911. 

94. Olongapo, P. I.— Homicide on naval vessel at Oloneapo, P. I. File 15285-64. See 

also Op. Attv. Gen., Oct. 20. 1909: 26 Op. Attv. Gen. 91. 

95. Same— Jurisdiction of Subig Bay Naval Reservation. See 26 Op. Atty. Gen. 91. 






T JURISDICTION. 323 

96. Same — All persons desiring to enter or reside within the boundaries of the Subic Bay- 
Naval Reservation, which includes the naval station, Olongapo, must first obtain 
permission from the commandant of the naval station, who also has the express 
power to exclude and deport from the reservation and naval station all those persons 
who may seem undesirable. This drastic action of deportation is taken only after 
a careful and thorough investigation, and because such persons have forfeited their 
privileges to such an extent that the public welfare and the necessity of protecting 
the civil and military interests demand their absence from the reservation. 

Title to all real estate of the reservation vests in the United States and the residents 
are permitted to use it by sufferance, signing what is known as a "waiver," in which 
they take an oath that thev will surrender such property upon demand of the United 
States. File 11406-429, Sec. Navy, July 6, 1915. 

97. Once attached — Where jurisdiction has attached, it can not be divested by mere 

subsequent change of status. In accordance with this principle an officer tried by 
court-martial and sentenced to dismissal and imprisonment may be held by the naval 
authorities to serve out the prescribed term of imprisonment notwithstanding that 
the sentence of dismissal is first executed. Upon the same principle, an enlisted man 
who commits an offense just prior to the expiration of his enlistment may be held for 
trial for court-martial after his enlistment expires, provided the necessary steps are 
promptly taken with a view to such trial. (Carter v. McClaughry, 183 U. S. 383.) 
See File 26251-5447, Dec. 8, 1911; 5252-74:14; Enlistments, 8-10. 

It is a settled doctrine of this court that a court having possession of a person or 
property can not be deprived of the right to deal with such person or property until 
its jurisdiction is exhausted, and that no other court has the right to interfere with 
such custody and possession. (In re Johnson, 167 U. S., 121.) 14 J. A. G., 191, Aug. 
4, 1909. 

Where civil authorities have not as yet acquired jurisdiction "the man in question 
should be tried by naval court-martial and as stated by the department (File 7538-74, 
Sec. Navy, Oct. 4, 1909) 'such a course would probably be a more expeditious manner 
of disposing of the case." File 7538-142, J. A. G., Dec. 3, 1913. 

98. Panama— Canal Zone. See Jurisdiction, 65. 

99. Paroled by civil authorities — A naval court-martial has jurisdiction to try and sen- 

tence an enlisted man paroled by the civil authorities where the governor of the 
State consents to such man's delivery to the Navy for disciplinary action. File 
26524-44. 

100. Same — An enlisted man arrested as a deserter while on parole for a civil offense will 

not be tried by court-martial, because constructively in the custody of the civil 
authorities, but should be discharged as undesirable as of the date of his conviction 
in the civil courts. File 4495-02, May 27, 1902. See also File 26283-281. 

101. Paymaster's clerks — Were subject to jurisdiction of naval courts-martial, even at 

a time when they were not strictlv officers of the Navy. See C. M. O. 27, 1887, 13; 
102, 1894; 160,1901; 26, 1902; 31, 1905;"39, 1905; 4, 1907; 32, 1908; 29, 1911; 30, 1911; 26, 1912; 
37, 1912; 35, 1913; 38, 1913; 24, 1915; 26, 1915. 

Naval general courts-martial have jurisdiction of offenses committed bv Clerks to 
Assistant Paymasters. U. S. M. C. C. M. O. 10, 1916. 

102. Peking, China— Murder outside of Peking. See Murder, 9. 

103. Pensacola, Fla.— Navv yard. See 7 Op. Atty. Gen. 573, quoted in File 6769-21, 

J. A. G., July 19, 1911", p. 9. 

104. Pensions— Taxation of sendee pensions. See Jurisdiction, 127. 

105. Philadelphia Navy Yard — Where an enlisted man was charged with a crime against 

a civilian, alleged to have been committed on a vessel of the Atlantic Reserve Fleet 
at the navy yard, Philadelphia, Pa., the department declined to deliver him to the 
civil authorities of Pennsylvania on the ground that the State was without juris- 
diction. File 26524-127, Mar. 23, 1915. See also Jurisdiction, 24: Murder, 22-24. 

With reference to the authoritv of the coroner in a case of homicide within the limits 
of this naval station, see File 26250-752:3, Sec. Navv, Feb. 11, 1916. 

106. Philippine Islands— The courts of the Philippine Islands have no jurisdiction ovei 

offenses committed on board a naval vessel at Cavite, P. I., notwithstanding Act 
No. 1 157 of the Philippine Commission, which provides that " the jurisdiction bf the 
city of Manila for police purposes only shall extend to three miles from the shore into 
Manila Bay," etc. The laws for the government of the Navv, the Navy Regulal ions. 
and lawful orders of superior naval authoritv, embody the only police* regulations in 
force on board naval vessels. File 26524-19, Oct. 26, 1910. See also Jurisdiction, 
94-96. 



324 JURISDICTION. 

107. Poll Taxes. See Poll Taxes. 

108. Porto Rico — Advised, That the insular authorities would not have the right to arrest 

an enlisted man of the Navy within the limits of the naval station, San Juan, Porto 
Rico. File 26524-32, J. A. G., Julv, 1911, citing treaty between United States and Spain, 
proclaimed Apr. 11, 1899 (30 Stat, 1755); 24 Op. Atty. Gen. 10; act, July 1, 1902 (32 
Stat. 731); President's Proclamation, June 26, 1903 (33 Stat. pt. 2, 2314); act, Apr. 12, 
1900, sec. 13 (31 Stat. 80); 23 Op. Atty. Gen. 566; 25 Op. Atty. Gen. 571; 25 Op. Atty. 
Gen. 194. 

For authorities on the question of jurisdiction in the Territories, and their applica- 
tion to Porto Rico, see File 3818, June 27, 1906; 1831-8; 8210. 

109. Prisoners— Service of process upon. See General Order No. 121, Sept. 17, 1914, 

15, 16; Jurisdiction, 111. 

110. Same — After discharge and end of enlistments — The department has authority to 

retain a general court-martial prisoner to serve out his sentence after his enlistment 
has expired and he has been given a discharge from the service. See Enlistments, 
8-10. 

111. Same — Civil or criminal processes upon court-martial prisoners — While it is the desire 

of the department to cooperate with the civil authorities in the punishment of crime 
and for placing in their hands offenders for whom warrants have been issued, it is 
proper that such should be done in a way so as to not interfere with the trial by naval 
courts-martial and execution of sentences imposed thereby upon the men desired by 
civil authorities. Held, therefore, such men should serve their sentences imposed by 
naval courts-martial, unless the civil proceedings would be thereby barred by the 
statute of limitations, aud upon completion of confinement in naval prisons they 
should then be turned over to the civil authorities. File 2944-2, Oct. 10, 1905; 26251- 
5546:1, Jan. 20, 1912; 26524-41, Mar. 7, 1912. See also General Order No. 121, 
Sept. 17, 1914, 16. 

112. Questions involving jurisdiction— Matters involving questions of jurisdiction, or 

conflict of authority, which can not be reconciled by correspondence between officers, 
must be referred, by officers of the Navy, to the Navy Department. (1-5303). 

113. Resigned officers — An officer who has resigned from the naval service is not subject 

to jurisdiction of naval courts-martial on charges preferred after date resignation was 
accepted, unless there is a law conferring such jurisdiction. G. O. 143, Oct. 28, 1869. 
See also In re Bogart, 3 Fed. Cas. No. 1596. 

114. Retired officers — Are subject to jurisdiction of naval courts-martial. (See Runkle v. 

U. S., 19 Ct. Cls. 396). See Retired Officers, 33. 

115. Revision — After a court-martial has been dissolved it has no jurisdiction to revise 

the proceedings in a formercase tried by it. CM. 0.4,1914,11. See also Court, 69, 70. 

116. San Juan, Porto Rico. See Jurisdiction, 108. 

117. State authorities — The State authorities are not empowered to arrest persons, either 

in the naval or civil service of the United States, within the limits of a navy yard, 
whether on shore or on board vessels at the yard, without first obtaining the per- 
mission of the commandant, to the end that such service of process shall not interfere 
with or obstruct operations of the United States Government. ( File 6769-21, J. A. G., 
July 19, 1911, pp. 33-34.) However, where a police officer, holding a warrant for the 
arrest of an enlisted man upon a charge of a misdemeanor, persuaded the man to leave 
his vessel on liberty and accompany the police officer outside the limits of the navy 
yard, there making the arrest, it was held by the Attorney General that while there 
are authorities which indicate that an application to the commanding officer is a neces- 
sary condition precedent to the State's acquiring jurisdiction (especially Ex parte 
McRoberts, 16 Iowa, 600, 604) , yet the better view, as held in the case of In re O'Connor 
(37 Wis. 379), is that application to the commanding officer is not jurisdictional, the 
matter being one that does not go to the jurisdiction of the civil' court issuing the 
process; that there is no doubt that the members of the military forces of the United 
States are subject in times of peace to the criminal laws of the States; and accordingly, 
that want of an application to the commanding officer would be a mere informality 
which might make the warrant of arrest irregular but would not make it void or 
voidable to be attacked upon a habeas corpus proceeding. File 7657-261:1, Nov. 
14, 1914. It is not intended that there should be any friction between the civil and 
naval authorities in this matter. Should a question arise at any time the commandant 
should inform the local authorities that the Navy Department has no desire to obstruct 
the operation of State laws by preventing the punishment of persons in the naval 
service or of persons in the civil service for violation of such laws; and that upon 

Sresentation of lawful process in proper hands the person wanted will invariably be 
elivered to the civil officer or such officer will be allowed to serve process himself, 



JURISDICTION. 325 

wliicliever course appears the more advisable, provided that the case is not one in 
which, by reason of any Federal interest involved, the United States should intervene. 
File 6769-21, J. A. G., July 19, 1911, p. 36, quoting File 6807, Sec. Navy, Mar. 16, 1907. 

118. Same — The principle that no State has the right to interfere with the instrumentalities 

of the Federal Government has been recognized from the earliest days of our Govern- 
ment. See File 6769-21, J. A. G., July 19, 1911, p. 36. 

119. Same — Purchase by consent of the legislature of the State — When the title is acquired 

by purchase by consent of the legislatures of the States, the Federal jurisdiction is 
exclusive of all State authority. This follows from the declaration of tiie Constitution 
that Congress shall have "like authority" over such places as it has over the District 
of Columbia; that is, the power of "exclusive legislation in all cases whatsoever." 
Broader or clearer language could not be used to exclude all other authority than that 
of Congress. File 6769-21, J. A. G., July 19, 1911, pp. 2-8, citing, Ft. Leavenworth 
R. R. Co. v. Lowe (114 U. S. 525); U. S. v. Cornell (25 Fed. Cas. No. 14S67); Com. v. 
Clary (8 Mass. 72); U. S. v. Meagher (37 Fed. Ren. 875); U. S. v. San Francisco Bridge 
Co. (88 Fed. Rep. 891, 894); TJ. S. v. Perm (48 Fed. Rep. 669). It will be seen, there- 
fore, that the exclusive jurisdiction of the United States over lands within a State 
which it has acquired only exists when the State within whose borders the land lies 
has ceded jurisdiction to the Federal Government; that is, by the consent of the 
legislature of the State. File 6769-21, J. A. G., July 19, 1911, p. 8. 

120. Same — Consent of the State — The consent of the States to the purchase of land within 

them for the special purposes named in clause 17, section 8, Article I of the Constitu- 
tion is essential, under the Constitution, to the transfer to the General Government, 
with the title of political jurisdiction and dominion. Where lands are acquired 
without such consent, the possession of the United States, unless political jurisdic- 
tion be ceded to them in some other way, is simply that of an ordinary proprietor. 
The property in that case, unless used as a means to carry out the purposes of the 
Government, is subject to the legislative authority and control of the States equally 
with the property of private individuals. (Fort Leavenworth R. R. Co. v. Lowe, 
114 U. S. 531.) File 6769-21, J. A. G., July 19, 1911, pp. 10-11. 

121. Same — Reservation of power to serve State process— Speaking generally of this 

reservation of power by the States to serve civil and criminal process upon lands under 
the exclusive jurisdiction of the Federal Government, it may be said that this is not 
considered as interfering in any respect with the supremacy of the United States 
over such lands, but is permitted to prevent them from becoming an asylum for 
fugitives from justice. (Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 531.) File 
6769-21, J. A. G., July 19, 1911, p. 12, citing IT. S. v. Travers (28 Fed. Cas. No. 16537); 
U. S. v. Carter (84 Fed. 622); U. S. v. Tucker (122 Fed. Rep. 518); Western Union Tel. 
Co. v. Chiles (214 U. S. 274); In re Ladd (74 Fed. 31); Steiner's Case (6 Op. Atty. Gen. 
413); 6 On. Attv. Gen. 577; 7 Op. Atty. Gen. 628; 8 Op. Atty. Gen. 418; 20 Op. Attv. 
Gen. 61lf 23 Op. Atty. Gen. 254; Army Digest, 1901, 675, 679, 691, 740, 742, 750, 1699; 
Martin v. House (39 Fed. Rep. 694). 

122. Same — Mere occupancy with State's tacit consent— Exclusive jurisdiction may be 

acquired by the United States with the consent of the State legislature, but if the 
Federal Government buys land, the same as any private individual might do, it does 
not thereby acquire any greater right thereover as to jurisdiction than would the 
private purchaser. Or, if it leases land it is not a "place" within the meaning of the 
17th clause, section 8, Article I of the Constitution, for that clause plainly implies 
the permanent use of the property purchased for the construction or erection of some 
of the structures designated or some other needful building. File 6769-21, J. A. G., 
July 19, 1911, p. 10, citing U. S. v. Tierney (28 Fed. Cas. No. 16517). 

123. Statute of limitations— Having run. See Statute of Limitations. 

124. Sentence of civil court suspended — A naval court-martial has jurisdiction over an 

enlisted man convicted by a civil court, and turned over to naval jurisdiction, 
sentence being suspended, and he was tried for his unauthorized absence. File 
26524-44. 

125. Subig Bay Naval Reservation. See Jurisdiction, 94-96. 

126. Summary courts-martial. See Summary Courts-Martial. 

127. Taxation of service pensions. File 9212-22, J. A. G., Feb. 21, 1912. 

128. Territorial jurisdiction— There is no territorial limit to the jurisdiction of naval 

courts-martial— The jurisdiction of general courts-martial is not similar to that of 
civil courts, their jurisdiction being coextensive with the territory of the United 
States; that is to say, a general court assembled at any locality within that territory 



326 JURISDICTION. 

may legally take cognizance of an offense committed at any other such locality what- 
ever. Further in cases of offenses committed in friendly foreign territory entered 
without the authority of the government of said territory they are, nevertheless, 
subject to the jurisdiction of courts-martial convened within the United States, 
provided the offender at the time of the offense was a member of an organization, 
detachment, or other forces under military command and discipline. File 26251-9965, 
J. A. G., Jan. 28, 1915. See also Jurisdiction, 53. 

129. Trial of man — After expiration of enlistment. See Breaking Arrest, 3; En- 

listments, 8-10; Jurisdiction, 52, 97. 

130. Voting— Dishonorable discharge — State to decide effect of dishonorable discharge on 

right to vote, not department. See Voting, 7. 

131. Same — State must decide, not department, if persons in naval sen-ice may vote in 

certain city. See Voting. 7-10. 

132. Want of jurisdiction. See Jurisdiction, 70. 

JURORS. 

1. Members of courts-martial— Capacity as jurors. C. M. 0. 94, 1905, 1. Seealso 6 Op. 
Atty. Gen. 200, 206; Court, 106. 

JURY. 

1. Civil employees— At navy vard, Charleston, S. C. See File 21090-3, Sept. 3, 1908; 

20 Op. Atty. Gen., 618. See also Civil Employees, 2; Constitutional Law, 8. 

2. Court of inquiry — A court of inquiry corresponds to a grand jury in civil courts, with 

the difference that the court of inquiry has larger powers and the scope of its investi- 
gation is broader than is the case with'a grand jury. Act of Feb. 16, 1909, 38 Stat. 621; 
act of Mar. 16, 1878, 20 Stat. 30; art. 57, A. G. N., sec. 1624, R. S. See G. C. M. Rec.29422; 
File 26251-9280. 

3. Courts-martial— The court in its capacity of jury has the power of determining the 

weight to be given to the testimonv of the accused and consider it in coming to its 
rinding. File 26251-9649; G. C. M. Rec. 24745; C. M. O. 16, 1916, 8. Seealso Court. 
107; Jury, 4, 12. 

4. Same — A naval court-martial in its capacity of jury is the sole judge of fact. G. O M. 

Rec. 24735. See also Court, 107; Jury, 3, 12. 

5. Same — Until the sentence of a court-martial has been approved or disapproved, 

the case still remains sub judice. In fact, the analogy of a court-martial is that 
of a jury in the trial of a civil case, the approving power in the former occupying 
the relation of the judge in the latter. The judge remands the case to the jury "fOr 
further consideration. The verdict must be accepted by the judge, and judgment 
rendered accordingly, before the verdict can have its complete execution and effect, 
whether of conviction or acquittal. So. in the corresponding case it must be with 
the proceedings of a court-martial as respects the approving power. 6 Op . Atty. Gen. 
200, 206. 

6. Same — Trials by jury not required in Navy — Congress has power to provide for the 

trial and punishment of persons in the naval service without a jury. (Dynes v. 
Hoover, 20 How. 65, 79.) File 26260-1392, 697, J. A. G., June 29, 1911, p. 30. See also 
Murder, 15. 

7. Deck court officer— As jury. C. M. 0. 14, 1911, 7. See also Deck Courts, 28. 

8. Discharge— Honorably discharged officer. See Jury, 14. 

9. Government employee. See Jury, 1. 

10. Grand jury— Compared with court of inquiry. See Jury, 2. 

11. Honorably discharged officer— Liability for jury duty. See Jury, 14. 

12. Members of courts-martial — Capacity as jurors. See Jury, 3, 4, 5. 

13. Officers— Retired officers summoned to appear for jury duty should urge to the judge 

of the court the objection arising from his military status, to his serving on a civil jury. 

14. Same — Department is aware of no law which would excuse "an honorably discharged 

commissioned officer of the United States Navv from serving on a Federal jury." 
File 21090-8, J. A. G., July 14, 1916. See also Retired Officers, 41. 

15. Retired officers. See Jury, 13. 

KEEPING FALSE ACCOUNTS. 

1. Paymaster's clerk— Charged with. CM. O. 28, 1887, 2. 

KIN, NEXT OF. 

1. Medical records— Deceased enlisted men, furnished to. See Medical Records, 3-4. 

KNEE. 

1. Injury to— Enlisted man. See Line of Duty and Misconduct Construed, 49. 



LAS ANIMAS NAVAL HOSPITAL. 327 

KNOWING OF AN INTENDED MUTINY, NOT COMMUNICATING HIS 
KNOWLEDGE TO HIS SUPERIOR OR COMMANDING OFFICER. 

1. Prisoner — A general court-martial prisoner had knowledge that four other prisoners 
"had a united purpose to commit mutiny" and did fail and neglect to communicate 
such knowledge to nis superior or commanding officer, G. C. M. Rec, 23522. See also 
Mutiny, 1. 

KNOWINGLY. See also Intent, 33; Joinder, Trial in, 19. 

1. Defined and discussed — In "Words and Phrases Judicially Defined" it is stated that 

"the term 'knowingly' imports a knowledge that the facts exist which constitute 
the act or omission a crime and does not require knowledge of the unlawfulness of the 
act or omission"; and also that "'knowingly' is equivalent to 'wilfully.'" (Fry v. 
Hubner, 57 Pac. 420, 421: 35 Or., 184.) "Knowingly and wilfully" as used in 
Revised Statutes, paragraph 3995 (U. S. Comp. Stat. 1901, p. 2716), providing that 
any person who shall knowingly and wilfully obstruct and retard the passage of the 
mail shall be fined, the word's "knowingly and wilfully" refer to those who know 
that the acts performed, however innocent they may 'otherwise be, will have the 
effect of obstructing and retarding the passage of the mail, and they perform the act 
with the intention that such will be their operation. (United States v. Cassidy, 67 
Fed. Rep. 698, 704.) C. M. O. 12, 1911, 5. 

2. False statements— The accused was tried upon a specification alleging that, when 

testifying before a board of investigation, he made a statement which "was know- 
ingly false and intended to deceive." 

The evidence adduced at the trial showed clearly that the statement in question 
was false, but there was no evidence introduced indicating that the statement was 
knowingly false and intended to deceive. An analysis of the offense charged shows 
that there are two elements essential to its completion, namely (1) falsity of the 
testimony in question and (2) knowledge of such falsity together with an intention to 
deceive. Inasmuch as only (1) of the above elements constituting this offense was 
established by evidence, proof was, therefore, lacking of the completion of the offense 
and the court properly acquitted the accused thereof. C. M. 0. 17, 1916, 8. 

3. Fraudulent enlistment— In relation to. C. M. O. 12, 1911, 5. See also C. M. 

O. 17, 1916, 8. 

KNOWINGLY AND WILFULLY MISAPPROPRIATING AND APPLYING TO 
HIS OWN USE AND BENEFIT MONEY OF THE UNITED STATES IN- 
TENDED FOR THE NAVAL SERVICE THEREOF. 

1. Chief Pay Clerk— Charged with. C. M. O. 28, 1916. 

2. Paymaster's Clerk— Charged with. C. M. O. 29, 1911. 

3. Paymaster's Clerk, U. S. M. C— Charged with. C. M. 0. 10, 1916. 

LANDSMAN. 

1. Rating of— Abolished for the seaman branch. G. O. 178, Nov. 29, 1904. See also 
C. M. O. 36, 1905, 3. 

LANGUAGE. See also Statutes, 9; Statutory Construction and Interpretation* 
62-64. . 

1. Abusive and profane— Words to be included in specification. See Charges and 

Specifications, 51, 56. 

2. Intent of —It has been held that language is to be given its ordinary import and meaning 

unless an explanation accompanies the use of the words which gives them a different 
meaning. C. M. O. 52, 1910, 2. 

3. Purpose — The purpose of language is to convey ideas and not to create distinctions. 

4. Threatening and profane— Under Massachusetts statutes. See File 26251-2093:12. 

5. "Using abusive and threatening language toward another person in the 

service"— Warrant officer charged with. C. M. O. 10, 1914. 

6. "Using obscene and threatening language toward another person in the naval 

service" — Warrant officer (commissioned) charged with. C. M. O. 28, 1915. 

7. "Using provoking and reproachful words toward another person in the Navy"— 

Commissioned officer charged with. C. M. O. 19, 1915. 

LARCENY. See also Theft. 
1. Civil authorities— Requested naval prisoner to try him for larcenv. File 26524-217, 
J. A. G., Dec. 28, 1915. 

LAS ANIMAS NAVAL HOSPITAL. 

1. Civil authorities— Delivery of enlisted men to. Sec Civil Authorities, 30. 

2. Summary courts-martial. See Summary Courts-Martial, 22; Hospitals, 2. 



328 LEADING QUESTIONS. 

LAW BOOKS. 

1. Number of and approximate value— In library of Office of Judge Advocate General. 

File 5087-107, J. A. G., Jan. 7, 1913. 

2. Sale of. File 10101-19, J. A. G., Sept. 8, 1915; 10101-19:1, J. A. G., Oct. 26, 1915. 

LAW CLERK. 

1. Counsel to judge advocate— Law clerk in Office of Judge Advocate General assigned 
as counsel to judge advocate of a general court-martial. See Counsel, 39. 

LEAD DROPPINGS. 

1. Storage batteries— Of submarines. C. M. O. 41, 1915. 

LEADING QUESTIONS. 

1. Aiding a defective memory. See Leading Questions, 5. 

2. Alternate form. See Leading Questions, 5. 

3. Court— May ask leading questions. File 26262-1194. See also Witnesses, 41. 

4. Cross-examination— Allowed in. See Leading Questions, 5. 

5. Definitions and discussion— In the case of an officer where many leading questions 

were irregularly permitted the department made the following remarks: 

As will be seen from this line of direct examination, each question suggests or puts 
the desired answer in the mouth of the witness, and was therefore subject to objection 
and exclusion from evidence on account of being leading. 

The judge advocate should have objected to these questions being asked the witness, 
but since he did not do so, and the procedure, irregular as it was, favored the accused, 
the proceedings were not held to be invalid. 

Forms of Procedure, 1910, p. 142, with reference to this subject states: "So long as 
the questions are relevant to the issue considerable latitude is allowed in the direct 
examination of witnesses, but care must be taken not to ask leading questions, i. e., 
those which suggest their answers, for they are excluded if objected to by the opposite 
party. Questions of identification of persons or things which have already been 
described, introductory questions, questions tending to aid a defective memory, 
and those asked a witness who appears hostile to the party calling him, are exceptions 
to this rule." Upon cross-examination leading questions are permitted. 

In a case published in C. M. O. 42, 1909, pp. 7-8, it was noted by the department 
that, in the examination of a witness for the prosecution, after he had testified to 
having heard a statement made by the accused, the judge advocate asked the witness 
this question: 

"Was or was not that statement voluntary?" 

This question was objected to by a member of the court as being leading, and, 
although the judge advocate in reply stated in substance that this question was con- 
tained in a form sent him from the office of the Judge Advocate General, the court 
nevertheless ruled that it was a leading question and should not be asked. 

A leading question has sometimes been incorrectly defined as one which may be 
answered by "Yes" or " No." As a matter of fact, such definition is not helpful, and 
a question which may not be answered by "Yes" or "No" may well be a leading 
question. 

The proper significance of the expression is a suggestive question — one which sug- 
gests or puts the desired answer in the mouth of the witness. (See 40Cyc, 2423.) 
A question addressed to a witness on examination is not necessarily leading because 
it may be answered "Yes" or "No." A leading question is one that points out the 
desired answer, and not merely calls for a simple affirmative or negative; and an 
interrogatory which merely asks a witness if he has any idea as to a fact which is in 
dispute between the parties, and directs him, if he has' such knowledge, to state the 
extent thereof, is not objectionable on the ground of being a leading question. 
(Coogler v. Rhodes, 21 South, 109; 38 Fla., 240; 56 Am. St. Rep., 170; People v. Mather, 
4 Wend. (N. Y.), 229; 21 Am. Dec., 122.) 

A question is leading which instructs the witness how to answer on material points, 
or puts into his mouth words to be echoed back, or plainly suggests the answer which 
the party wishes to get from him, whether it be put in the alternative form or not. 
(Page v. Parker, 40 N. H., citing with approval People v. Mather, 4 Wend. (N. Y.) 
229, 21 Am. Dec. 122, and Courteen v. Touse, 1 Campb. 431.) 

Simply because a question can be answered by "Yes" or "No" does not neces- 
sarily class it as a leading one. The question, "Do you recognize the accused?" is 
answerable bv "Yes" or "No." and vet no authoritv would consider this a leading 
question. (See in this connection G. C. M., Rec. 32420, p. 4.) 



LEADING QUESTIONS. 329 

In Court-Martial Order No. 49, 1910, p. 18, the department held that " it is improper 
to ask the witness * * * if he recognizes the accused as John Doe, seaman, U. S. 
Navy, etc." . m 

The department has held that the following two questions were leadmg when asked 
on direct examination: 

"Were you present on the Philadelphia on July 20, 1910, when the accused was deliv- 
ered on board by civil authorities of Tacoma?" In this case the accused was charged 
with "Desertion." (C. M. O. 26, 1910, p. 7.) 

"At or about 10.30 a. m. that date did you notice anything peculiar about the ac- 
cused?" Here the fact to be established was the time. (C. M. O. 28, 1910, p. 7.); 
C. M. O. 48, 1915. See also C. M. O. 76, 1899, 1; 33, 1905, 1; 42, 1909, 7-8; 49, 1910, 18; 
26, 1910, 7; 28, 1910, 7; G. C. M., Rec. 28681, pp. 42, 43, 44, 62, 65, 66; 30485, pp. 41, 42, 453, 
609; Dying Declarations, l (p. 202, line 19). 

The court, during the examination, acting as judges, may propound leading ques- 
tions. (Wigmore, sec. 784.) At common law a judge could even call a new witness 
of his own motion, and could seek evidence to inform himself judicially; much more 
could he ask additional questions of a witness already called but imperfectly examined. 
The confusion of a witness would be a further valid reason why leading questions 
might, in the discretion of the court, be asked. It may be necessary to put leading 
questions to a child or an ignorant person, or to one havmg a defect of speech. When 
and under what circumstances a leading question may be put is a matter resting in the 
sound discretion of the court, and not a matter which can be assigned for error. A 
question by the court can not, in the nature of the case, be obnoxious, since the court 
is not supposed to favor either side, and therefore neither for the questioner nor for 
the witness can the supposed danger of improper suggestion exist. File 26262-1194, 
J. A. G., June 11, 1911, p. 8. 

6. Direct examination— In general (subject to exceptions), leading questions should not 

be asked in direct examination. See Leading Questions, 5. 

7. Examples. See Leading Questions, 5. 

8. Exceptions to rule. See Leading Questions, 5. 

9. Hostile witnesses— Leading questions may be asked a witness who appears hostile 

to the party calling him in direct examination. See File 26251-12462; Leading 
Questions, 5. 

10. Identification — Leading questions of identification of persons or things which have 

already been described may be asked in direct examination. See Leading Ques- 
tions, 5. 

11. Same— Frequently the judge advocates, in their examination of witnesses, ask a 

question concerning the identity of tho accused which is leading and therefore im- 
proper. 

The witness should be asked if he recognizes the accused ; and if so, as whom, thereby 
permitting the witness to state to just what extent he does identify the accused. 
It is improper to ask the witness, as is so frequently done, if he recognizes the accused 
as John Doe, seaman, U. S. Navy, etc. C. M. 6. 49, 1910, 17. See also Leading 
Questions, 5. 

12. Instructs witness— How to answer on material points. See Leading Questions, 5. 

13. Introductory questions — May be asked on direct examination. See Leading 

Questions, 5. 

14. Judge advocate — Should not ask leading questions (which are not exceptions to the 

rule) in direct examination, particularly when accused is without counsel. See 
Judge Advocate, 36. 

15. Memory, defective— Questions aiding a defective memory. See Leading Questions, 5. 

16. Suggestive question. See Leading Questions, 5. 

17. "Was or was not." See Leading Questions, 5. 

18. "Yes" and "No"— Questions which may be answered by. See Leading Questions, 5, 

LEAVE OF ABSENCE. 

1. Arrest— Persons arrested by civil authorities may be granted leave of absence. See 

General Order No. 121, Sept. 17, 1914, 14. 

2. Bail— Leave of absence may be granted bv commanding officer to an enlisted man who 

returns to ship on bail. See Bail, 1; Civil Authorities, 31; General Order No. 
121, Sept. 17, 1914, 14. 

3. Burden of ascertaining time of expiration— Is on the individual. C. M. O. 23, 1915. 

4. Civil employees— Leave of absence without pay. Sec Leave of Absence, 13. 

5. Extension of— Failure to receive positive permission to remain absent renders it 

essential to return at once. C. M. O. 25, 1915, 2. 



330 LEAVE OF ABSENCE. 

6. Half pay — Improper if such pay to be forfeited to Government — The Secretary of the 

Navy can not grant an officer leave of absence for one year, with one-half pay as pro- 
vided by law, upon condition that said officer return to the Government the pav 
received by him during such leave of absence. However, should such officer return 
his salary "to the Treasury it would be received and placed in the " conscience fund" 
and the legality of the condition would probably not arise. File 13673-1442:1, J. A. 
G., Jan. 13, 1912. 

7. Officers— Can not be demanded as a right— If an officer chooses not to avail himself 

of his accumulated leave of absence, or to request it, it is not demandable as a matter 
of right, since the granting of leaves of absence to officers is discretionary with the 
Secretary of the Navy. File 26253-170:2, J. A. G., May 20, 1911. See also Leave 
of Absence, 8, 10. 

8. Bequest for, prior to retirement— Recommended that the application of an officer 

for accrued leave of absence be disapproved; and that when an officer is found incapaci- 
tated for active service he be retired in confonnitv witb the provisions of law applicable 
inhiscase. File 26253-170:2, J. A. G., May 20, 1911. ^Seealso Leave of Absence, 7, 10. 

9. Retirement— Request for, prior to retirement. See Leave of Absence, 7, 10. 

10. Right, not a— But a privilege granted to suit convenience of officer and Government — 

Leave of absence is not recognized as a right, but as a privileee which is granted to suit 
the convenience of an officer, and of the Government. Held, where it is definitely 
established by a naval retiring board that an officer is incapable of performing further 
active duty, it is for the best interests of the service that he be placed on the retired 
list immediately upon the approval of the board's finding, and a request from such 
an officer that he be granted leave of absence prior to being placed on the retired list 
was denied. (See File 26253-170:2, J. A. G., Mav 20, 1911.) File 26253-447, Sec. 
Navy. Dec. 7, 1915; C. M. O. 49. 1915, 25. See also Leave of Absence, 7, 8. 

11. Warrant officers— As provided in act of Aug. 29, 1916. See Warrant Officers, 14. 

12. Without pay — No legal effectiveness could be given to a condition that leave would 

be granted witbout pay, i. e., as the department would not have the power to enforce 
such a condition, it would be useless to give leave upon those terms. File 13673- 
1442, J. A. G., Nov. 22, 1911. See also Pat, 115, 116. 

13. Same — Where a person holds his position in the discretion of the Secretary of the Navy, 

and the matter of leave of absence to that person is within the Secretary's discretion, 
the Secretary may grant leave of absence to such a person subject to such limitations 
and conditions as he might impose. Therefore, leave of absence for a year may be 
granted to such person without pay, but such a case is distinguishable from the case 
of an officer whose position is not held in the discretion of the Secretary of the Navy. 
The Secretary can not, therefore, grant an officer leave of absence for an extended 
period upon the condition that such leave be with pav. File 13673-1442, J. A. G., 
Nov. 22, 1911. See also File 5252-72, J. A. G., Sept. 20, 1915; Andrews v. U. S., 49 
Ct. Cls.,391; Pay, 115, 116. 

See File 2704-04, J. A. G., Mar. 29, 1904, with reference to furloughing a clerk of the 
Navy Department without pay. 

LEAVING HIS STATION BEFORE BELNG REGULARLY RELIEVED. 

1. Enlisted man— Charged with. C. M. O. 49, 1915, 16. 

2. Naval cadet— Chareed with. C. M. O. 89, 1899. 

3. Officer— Charged with. C. M. O. 28, 1908; 25, 1910. 

4. Specific intent— Not required. See Intent, 2. 

LEAVING HIS STATION BEFORE BEING REGULARLY RELIEVED, IN 
VIOLATION OF PARAGRAPH 9, ARTICLE 4, OF THE ARTICLES FOR 
THE GOVERNMENT OF THE NAVY. 

1. Midshipmen— Charged with. G. C. M. Rec., 131S6. 

LEAVING HIS STATION WITHOUT BEING REGULARLY RELD3VED. 

1. Officers— Charged with. C. M. O. 50, 1882; G. C. M. Rec., 8821. 

LEAVING SHIP. 

1. While under suspension from duty and missing ship — Officer tried by general 
court-martial on charge of "Conduct to the prejudice of good order and discipline." 
See Conduct to the Prejudice of Good Order and Discipline, 10. 



LENDING MONEY. 331 

LEGAL, ASSISTANCE FOR OFFICERS AND ENLISTED MEN. 

1. Department affords— In proper cases the department takes action through the Depart- 
ment of Justice to protect persons in the naval service from the consequences which 
may ensue from the performance by them of official duties; but where an officer 
evaded or declined furnishing sufficient information, although the papers were twice 
referred to him for this purpose, the department was unable to take action upon 
his request that he be afforded legal assistance at the expense of the United States. 
His request could not, therefore, be granted. File 26262-1705:3, J. A. G., May 21, 
1915; C. M. O. 20, 1915, 5-6. See also Officers, 86. 

LEGAL LIABILITY. 

1. Chief commissary steward (court-martial prisoner) — Against five naval officers 

in connection with his court-martial. File 26522-19:4, Dec. 3, 1912. See also 9 Op. 
Atty. Gen. 51. 

2. Judge Advocate General — Suit was entered by a retired naval officer against the 

Judge Advocate General of the Navy, based upon action alleged to have been taken 
by the Judge Advocate General in his official capacity. The chief justice of the 
Supreme Court of the District entered an order dismissing the suit. (At law, No. 
46683, Supreme Court of the District of Columbia.) File 204-04, Jan. 15, 1904. See 
also 9 Op. Atty. Gen. 51. 

3. Mandamus proceedings— By a retired naval officer against Secretary of the Navy. 

File 27231-8:6, Feb. 6, 1911. See also 14 J. A. G. 263; 15 J. A. G. 94, Mar. 10, 1911; 9 
Op. Atty. Gen. 51. 

4. Members of courts-martial. See Members of Courts-Martial, 7; Revision, 24. 

5. Officer— Civil suit by a pawnbroker against a marine officer who searched his shop. 

File 28478-2:1. See also 9 Op. Atty. Gen. 51; Steele v. Hallingan (229 Fed. Rep., 
1011). 

6. Secretary of the Navy. See Legal Liability, 3. 
LEGAL REPRESENTATIVES. 

Definition — The words "legal representatives" while ordinarily indicating executors or 
administrators, have been construed by the courts in some cases to apply to other 
persons and in the Navy Regulations, 1913, R-2119, have been given a broad inter- 
pretation so as to include "heirs at law," and ' 'relatives." File 26250-477:6^, J. A'. G., 
Oct. 8, 1914; 28478-33, J. A. G., April 17, 1916. 

LEGATION GUARDS. 

1. Orders to— By diplomatic or consular officers. See Diplomatic Officers, 2. 

LEGISLATION. 

1. Attorney's claim — For services in procuring: See Debts, 18. 

2. Influencing— Tne claims of an attorney at law, against certain officers of the Navy for 

alleged services rendered in legislation in their behalf were held to be not legal and 
the department should not aid in their collection. File 17789-12:1, J. A. G., Feb. 25, 
1910. See also File 13673-3192; 28091-5; Claims, 5; Debts, 18. 

3. Lobbying. See Debts, 18; Claims, 5; Legislation, 2. 

4. Permanent legislation— As indicated by word "Hereafter." See "Hereafter," 1. 

5. Restoration of dismissed officers— No more powerful influence for the demoralization 

of the naval service is to be found than that which results from the restoration of 
officers dismissed from the service for drunkenness or other misconduct, or for 
demonstrated incapacity. 

While affirming in the strongest terms its opinion of the general inexpediency of 
restoring dismissed officers, the department also relies for the protection of the sen-ice 
upon the unconstitutionality of legislation for such purposes, as set forth in President. 
Arthur's veto message of July 2, 1884. (See VIII, Messages and Papers of the Presi- 
dents, 221.) An effectual barrier has been established by the Constitution to any 
restoration to the Navy, by legislation, of particular officers who have been dismissed 
therefrom; and the Supreme Court has further established the proposition that such 
dismissals when once accomplished can not be revoked by the Executive. Annual 
Report of the Secretary of the Navy, 1884, pp. 42, 43. 

LENDING MONEY. See C. M. O. 21, 1910, 6. See also Borrowing Money. 



332 



LETTERS. 



LETTERS. See also Evidenece, 87. 

1. Accused— Identifying letter from accused. C. M. O. 8, 1905, 3 

2. Same— The accused was tried upon the charge of "Desertion,'" the specification of 

which alleged that he deserted from the receiving ship Wabash on or about the 
first day of November, 1903, and continued in desertion until he was apprehended 
by the civil authorities and delivered on board said vessel, on the twenty-sixth day 
of December, 1904. The accused pleaded guilty to the specification, except to the 
words implying desertion and to the charge he pleaded guilty in a less degree than 
charged, guilty of absence without leave. The accused was, therefore, by his own 
plea, guilty of an unauthorized absence of about fourteen months. 

The court erred in admitting a letter from the accused, copy of which was appended 
as an exhibit and marked "J," for the letter so admitted had not been swom to, nor 
even acknowledged by the accused to be his letter. With available evidence before 
it of such a long, unauthorized absence by the accused and that he was apprehended 
by the civil authorities and delivered on board the Wabash, the court should have 
rejected the plea of the accused and proceeded with the trial upon its merits, but as 
the error of the court worked to the benefit of the accused and in no wise to his dis- 
advantage the Judge Advocate General recommended that, subject to the foregoing 
remarks, the proceedings, finding and sentence in the case be approved. C . M. . 8, 
1905,3. See also Letters, 15, 16. 

3. Same— A judge advocate offered a letter purported to have been sent by the accused to 

an officer in charge of a recruiting district. It was not shown to have been written 
by the accused nor was it shown to have been received by the officer to whom it was 
addressed. The department held that such letter was inadmissible as evidence. 
C. M. O. 17, 1910, 4. 

4. Adjutant and inspector, Marine Corps— Indorsement on— The judge advocate intro- 

duced in evidence, for the purpose of showing previous conviction of the accused, an 
indorsement of the Adjutant General of the Army upon a letter of the Adjutant 
and Inspector of the Marine Corps. This procedure was improper for such writing 
is not competent evidence to prove previous conviction. C. M. O. 47, 1910, 4. 

5. Same — While the witness was still on the stand and undergoing cross-examination, the 

judge advocate irregularly and improperly introduced a letter from the Adjutant and 
Inspector, U. S. Marine Corps, to the commanding officer of the naval prison at the 
navy yard, Portsmouth, N. H., in reference to the change of the witness's name to 
discredit his testimony. C. M. O. 47, 1910, 5. See also Impeachment, 9. 

6. Army— Letter from the military authorities at Alcatraz Island, Cal., as evidence. 

C. M. O. 49, 1910, 10. 

7. Bureau of Navigation — Letters from Bureau of Navigation to judge advocate as 

evidence. C. M. O. 12, 1895, 2; 38, 1895, 2. 

8. Carbon copies— As evidence. See Carbon Copies. 

9. Charges and specifications — Letter of transmittal. See Letters, 28-30. 

10. Commandant of Marine Corps — Letter to judge advocate as evidence. C. M. O. 

47, 1895, 2; 53, 1895, 2. 

11. Commanding officer — Letter of, as evidence. See Letters, 16. 

12. Confession — Letter containing a confession. See C. M. O. 41, 1904, 2; Confessions, 

5; Letters, 2. 

13. Copy of letter — As evidence — A copy of a document of any kind is never competent 

evidence when it is practicable to produce the original in the case. The fact that the 
copies submitted were certified by the judge advocate showed conclusively that if 
they were available for the purpose of his making a copy thereof, they were also 
available for introduction in evidence, and, therefore, such copies as were introduced 
were wholly incompetent as evidence. C. M. O. 40, 1909, 2. 

14. Cross-examination— The judge advocate objected to the introduction of a certain 

letter in evidence on the ground that it was not subject to cross-examination, and 
the court erred when it did not sustain the objection. The admission of the latter 
in evidence was a clear violation of the rule against the admission of hearsay evidence. 
C. M. O. 30, 1912, 4. See also C. M. O. 6, 1913, 4; Hearsay Evidence, 3. 

15. Desertion, to prove— A letter from the Bureau of Navigation addressed to the Navy De- 

partment (Judge Advocate General) through the Major General Commandant, 
United States Marine Corps, in which it is stated that the Bureau is informed that a 
bluejacket who deserted from a certain naval vessel on a given date is now serving 
in the Marine Corps under another name, is inadmissible as documentary evidence 
to prove desertion from the naval service. CM. 0.30,1910,6. Seealso Letters, 2, 16. 






LETTEKS. 333 

16. Same— The judge advocate introduced as evidence of "Desertion" a letter from the 
commanding officer of the accused, reporting him to the Bureau of Navigation for 
the offense. 

While the introduction of this letter does not appear to have been objected to by 
the counsel for the accused , the court erred in permitting the same, as such a letter, 
even when fully identified and its character as an original document established, 
or, as in this case, accepted without question as to its authenticity, is not evidence 
of the commission of any offense set forth therein, but only that the man had been 
charged with, or reported for, committing said offense. A document of this kind 
differs materially from the man's enlistment record (which was properly introduced 
in this case to show the fact of the accused's absence from his ship without leave 
from and after a certain date), as the latter is the original, formal record of a man's 
service in the Navy from the beginning of his enlistment, showing, as required by 
law and regulations, the place, date, and circumstances 01 such enlistment, and the 
dates of subsequent transfers to various ships or stations, and, in case the man's 
service be terminated before the expiration of his enlistment, the date and place 
of his death, discharge, or of absenting himself in other than an authorized manner. 
This record is required to be kept with especial care and accuracy, as constituting the 
official history of the man to whom it pertains, and every entry thereon relating to the 
circumstances above mentioned, as well as to his conduct and professional ability, 
must be authenticated by the signature of his commanding officer. 

While the court's finding of "proved" as to the first specification appears to have 
been based solely upon the contents of the letter above mentioned, and was there- 
fore not justified by any competent evidence, the offense alleged in the second speci- 
fication was established in a satisfactory manner, and thus the finding of "guilty" 
upon the charge was correct. 

Accordingly the finding upon the first specification was disapproved. C. M. O. 
74, 1903, 3. See also Letters, 2, 15. 

17. Evidence, as — Counsel for the accused irregularly introduced documentary evidence in 

the form of a letter addressed to the agent of the accused and also photographic copies of 
certain checks. The record does not show that either the court or the judge advocate 
was afforded an opportunity to object to the introduction of these documents, or 
even that the same were received in evidence by the court. (Rec. pp. 9-10.) Also 
the judge advocate irregularly introduced documentary evidence in the form of a letter 
written by the Army and Navy Club to the Navy Department. In the present case 
the record does not positively show, as should be the case, that the above-mentioned 
documents were properly identified before being introduced; that they were submitted 
to both the court and the accused, or to the court and the judge advocate, depending 
upon the use to be made of this evidence; and whether or not objection was made 
to its receipt in evidence and the court's action thereon. Also, in consequence of 
the irregular manner of their introduction, the court did not pass upon the question 
of the competency or relevancy of these documents as evidence to be used in the trial 
of this case, and the court thereby and to that extent failed to fully perform its func- , 
tions as a court. C. M. O. 15, 1916, 3. See also C. M. O. 2, 1917, 2. 

The court improperly allowed the introduction of certain letters, testimonial as to the 
previous good character of the accused, to be admitted in evidence. Such procedure 
was improper, but in this case did not affect adversely the interests of the accused. 
The court should have excluded these letters and directed that such testimonials be 
forwarded by the judge advocate of the court to the department for the consideration 
of the reviewing authority. File 26251-11479, Sec. Navy, Feb. 16, 1916. 

18. Same— Letters are, in general, incompetent as evidence. C. M. O. 74, 1903, 3; 8, 1905, 3; 

47, 1910, 5; 49, 1910, 10; 17, 1910, 4; 30,1910,6; 30, 1912,3-5; 6, 1913, 4. Seealso Evidence, 
87; Letters, 2, 3, 4, 5, 12-16. 

19. Form— For denving requests of pardon for unconvicted deserters. File 262S2-84, 

,T. A. G., March 27, 1912. 

20. Hearsay— Letters are, in general, inadmissible in evidence because they are hearsay 

evidence. See Hearsay Evidence, 3; Letters, 14. 

21. Letterpress copies. See Carbon Copies, 1. 

22. Letter of transmittal. See Letters, 28-30. 

23. Midshipman— Form letter for dismissing a midshipman. File 26283-925, Sept. IS, 

1915. 

24. Pardon— Form for denying. See Letters, 19. 

25. Post adjutant — A letter from a post adjutant introduced in evidence was held im- 

properly admitted, being, though official, a mere ex parte statement. (Forms of 
Procedure, 1910, p. 147.) 



334 LETTERS. 

26. Public reprimand. See Public Reprimand. 

27. Threatening letters. See Officers, 118. 

28. Transmittal, letter of— The letter of transmittal is the document that gives the court 

jurisdiction in that particular case over the person named therein. C. M. O. 8, 1911, 6. 
See also Charges and Specifications, 59. 
Marking of. See Charges and Specifications, 59. 

29. Same — Original or certified copy must be filed with the charges and specifications as 

a part of the record. C. M. O. 1, 1894, 3; 3, 1894; 62, 1894; 38, 1895, 2; 47, 1895, 2; 62, 1895; 
56, 1897, 2; 155, 1897, 2; 103, 1899, 2. See also Charges and Specifications, 57. 

30. Same — The letter of transmittal (transmitting the charges and specifications to the 

judge advocate) in this case was on the same sheet of paper as the charges and speci- 
fications. Accordingly, the entry given on page 22 of the Forms of Procedure, 1910, 
should have been slightly modified to fit the circumstances, being changed to read, 
"The judge advocate read the letter of transmittal, and the charge and specification, 
original prefixed, marked 'B,' and arraigned the accused," etc. C M. O. 6, 1916, 3. 

31. Transmitting to commanding officer copy of charges and specifications for 

accused — The letter from the convening authority to the commanding officer of the 
accused, transmitting to him for delivery to the accused a copy of the charges and speci- 
fications was appended to the record marked "B," and had been read to the court. 
This letter has no place in the record, should not be read to the court, and should not 
even come into the possession of the judge advocate. (Forms of Procedure, 1910, 
p. 56; Index-Digest, 1914, pp. 27, 33.) C. M. O. 6, 1916, 3. SeealsoC. M. 0. 47, 1895, 2; 
53, 1895, 2; 26, 1910, 8; 28, 1910, 6; 25, 1914, 3; 42, 1914, 4. 

32. Unsigned— Written before offense committed — Counsel for accused, with consent of 

judge advocate, introduced in evidence an unsigned letter purporting to have been 
written by deceased wife of accused and found on a dresser in accused's apartment 
shortly after the shooting which resulted in the death of accused's wife. Letter was 
not identified as having, in fact, been written by deceased and was moreover irrele- 
vant. It was not claimed that it had been written after the shooting, but a claim was 
made that it was written before. Notwithstanding that it was wholly and entirely 
irrelevant it must have been accepted at the highest value by court and made the 
basis of its complete and unqualified exoneration of the accused. The acquittal in 
this case was accordingly disapproved. C. M. O. 5, 1913, 11. 

"'LET DE FUGA'— THE LAW OF FLIGHT." Ct. Inq. Bee., 6029. 

LIBEL. See also State, 7. 
1. Defined and discussed with reference to letters of reprimand— An officer having 
received a letter of reprimand from the Secretary of the Navy for certain offenses 
was later brought to trial by general court-martial for the same offenses. When the 
case came on to be heard, counsel for the accused presented a plea in bar, "by reason 
of the fact that the accused has once been punished for the same offense," and in sup- 
port thereof, argued that the letter addressed by the department to the accused was a 
formal reprimand, within the meaning of Navy Regulations, 1909, R-265 [See Jeop- 
ardy, Former, 19]; that by analogy with the law of libel said letter must be held 
to have been published, inasmuch as it had been necessarily read by the stenographer 
who wrote it, by the officer of the Navy Department who initialed it, by the Secretary 
of the Navy who signed it, and by the commandant of the naval station through 
whom it was transmitted to the accused. The counsel for accused thus argued that 
the law of libel should be extended by analogy to the question of what constitutes a 
public reprimand, and that, therefore, any letter of reprimand which is seen by a 
third person is public. Counsel does not specify whether by the "law of libel ""he 
refers to criminal or civil libel. In either case, however, it requires but little consider- 
ation to conclude that his contention is wholly untenable. All the authorities agree 
that "public" is a relative term used in contradistinction to the word "private." (See 
State v. Sowers, 52 Indiana 311, 312.) These terms properly have no application to 
the law of libel — it is not necessary that a libel should be public in a usual sense of 
the word in order to be actionable, and there can technically be no such thing as a 
private libel. It is commonly said that a libel must be "published" to constitute a 
wrong, but a communication of the defamatory matter to the mind of another — even 
privately to the party injured, and not to a third person — is a publication thereof, 
rendering the offender subject to trial under penal statutes (State v. Shaffner, 44 Atl. 
620, 621 ; Swindle v. State, 10 Tenn. 581, 582); and it has even been held that the writing 
of a letter and depositing it in the post office for transportation to the party addressed, 
constitutes a publication of it within the law of criminal libel (Mankins v. State, 41 



LIBEL. 335 

Tex. Cr. R. 662), though the contents should not in fact become known. (Haase v. 
State, 53 N. J. Law, 34.) On the other hand, under the law of civil libel it is necessary 
merely that the matter should be communicated to some person other than the 
parties to the action, and the dictation of a libelous letter to a stenographer is held a 
sufficient publication thereof. (Gambrill v. Schooley, 93 Md. 48.) 

Applying the arguments of counsel for accused, therefore, it would follow that there 
could be no such thing as a letter of private reprimand written by the Secretary of the 
Navy, as such a letter must of necessity be communicated to the officer addressed, 
which of itself, would constitute a publication, according to the law of criminal libel; 
and, in any event, the letter must be seen by some official or clerk of the Navy Depart- 
ment in the course of its preparation, recording and transmittal, which would consti- 
tute a publication according to the law of libel as applied in civil actions to recover 
damages. File 26251-2993, J. A. G., March 10, 1910, pp. 5-6. 

2. Enlisted man—Charged with writing and mailing libelous letter concerning his superior 

officer. C. M. O. 20, 1915, 2. 

3. Public and private reprimands. See Libel, 1. 

4. Publication— It is commonly said that a libel must be "published" to constitute a 

wrong, but a communication of the defamatory matter to the mind of another — even 
privately to the party injured, and not to a third person— is a publication thereof, 
rendering the offender subject to trial under penal statutes (State v. Shaffner, 44 
Atl. 620, 621; Swindle v. State, 10 Term. 581, 582); and it has even been held that the 
writing of a letter and depositing it in the post office for transportation to the party 
addressed, constitutes a publication of it within the law of criminal libel (Mankins 
v. State, 41 Tex. Cr. R. 662), though the contents should not in fact become known. 
(Haase v. State, 53 N. L Law, 34.) File 26251-2993, J. A. G., March 10, 1910, quoted 
with approval in File 26251-12158-12159, J. A. G., August, 1916. See also File 
26251-12159, Sec. Navy, Dec. 9, 1916, p. 11; C. M. O. 5, 1917. 

5. Reprimands. See Libel, 1. 

6. Seditious libel. See C. M. 0. 14, 1910, 14. 

LIBERTY. 

1. Deprivation of on shore— Distinguished from confinement. See Confinement, 12, 13. 

LIBRARY, LAW. 

1. Office of Judge Advocate General. See Law Books. 

LIGHTSHIPS. 

1. Appropriations for. File 4670-47, J. A. G., Nov. 23, 1910, p. 4. 

LINE AND STAFF. 

1. Controversy between. See Command, 19. 

LINE OFFICERS. See also Officers. 

1. Military command— Line officers exercise military command. See Command, 18, 19. 

2. Rank and title of— As compared with staff officers. See Rank, 17. 

LINE OF DUTY AND MISCONDUCT CONSTRUED. 

1. Accidental injuries— Fracture of skull due to bursting in of an air port in crew's head 

while vessel was at sea in heavy weather. Death of deceased due to one of the ordinary 
hazards of life on board ship while attending to his daily needs in the part of the ship 
authorized for that purpose and deceased was not negligent. Held: Line of duty and 
not misconduct. File 26250-335; Ct. Inq. Rec. 5451. 

2. Acts of personal nature— Distinguished from acts of duty. See Line of Duty 

and Misconduct Construed, 22. 

3. Air port — In crew's head bursting in. See Line of Duty and Misconduct Con- 

strued, 1. 

4. Automobile — Officer killed while speeding. See Line of Duty and Misconduct 

Construed, 87. 

5. Bilges — Explosion of gasoline while cleaning bilges. See Line of Duty and Miscon- 

duct Construed, 111. 

6. Boiler explosions— Deceased while on duty in fireroom of naval vessel was burned 

by flame and steam, death being caused by external burns and inhalation of steam. 
Held: Line of duty and not misconduct. "File 26250-642, Sec. Navy, Mar. 16, 1915; 
Bd. of Inquest; C. M. O. 12, 1915, 9. See also Ct. Inq. Rec. No. 0145; File 26250-643 
to 26250-650, inc. 

50756°— 17 22 



336 LINE OF DUTY AND MISCONDUCT CONSTRUED. 

7. Boxing ashore — Deceased while boxing ashore was struck by nis opponent on the 

jaw, death resulting from a combination of the blow and head striking floor. Held: 
Not line of duty but not misconduct. File 26250-630, Sec. Navy, Feb. 10, 1915, Bd. of 
Inquest; C. M. O. 10, 1915, 8. 

8. Boxing on board, snip — Deceased, while boxing on board ship at his own request 

with another enlisted man using five-ounce gloves, was struck a shoving blow on the 
right chin and fell, landing on shoulder; friend of opponent; evidence that death 
was incident to a beginning right-sided pneumonia producing acute dilation of heart 
as result of exertion of boxing. Held: Line of duty and not misconduct. File 
26250-624, Sec. Navy, Jan. 25, 1915, Bd. of Inquest; C. M. O. 6, 1915, 12. 

9. Same — Deceased engaged with shipmate in friendly boxing bout on board ship, training 

for boxing bouts for which permission had been given by commander-in-chief, using 
boxing gloves issued to ships for boxing purposes; tripped over stanchion, fell to deck; 
deatn due to an intracranial hemorrhage due to jar resulting from fall or blow on jaw. 
Held: Line of dutv and not misconduct. File 26250-637, Sec. Navy, March 3, 1915; 
Ct. Inq. Rec. No. 6163; C. M. O. 12, 1915, 9. 

10. Brain, concussion. See Line of Duty and Misconduct Construed, 16. 

11. Bunker— Deceased entered coal bunker and striking match. See Line of Duty and 

Misconduct Construed, 71. 

12. Burning. See Line of Duty and Misconduct Construed, 111. 

13. Bursting of an air port. See Line of Duty and Misconduct Construed, 1. 

14. Coal bunker. See Line of Duty and Misconduct Construed, 71. 

15. Coaling ship — Deceased while on duty coaling ship was struck by a bag used in coaling 

ship. Held: Line of duty and not misconduct. File 26250-638, Sec. Navy, March 11, 
1915; Ct. Inq. Bee. No. 6157; C. M. O. 12, 1915, 9. See also File 26250-41; 26250-225; 
26250-308:1; Ct. Inq. Bee. No. 5432. 

For a case of where an officer was killed while coaling ship, see File 26250-744, Sec. 
Navy, Feb. 17, 1916. 

16. Concussion of brain — Deceased, while on authorized liberty and riding a motor- 

cycle for his own pleasure, was thrown therefrom and sustamed injuries which re- 
sulted in death. There was no evidence of negligence on the part of the deceased. 
Held : Not line of duty but not misconduct. File 26250-783, Sec. Navy, April 20, 1916; 
C. M. O. 13, 1916, 8. 

17. Crushed by turret— Deceased while sleeping during noon hour beneath overhang of 

turret was killed by turret crushing his head while it was being trained for adjust- 
ments under competent direction and proper authority. Held: Line of duty and not 
misconduct. File 26250-595:1, Sec. Navy, Nov. 13, 1914; Ct. of Inq. Bee. No. 6088; 
C. M. O. 6, 1915, 12. 

18. Disappearance— An enlisted man, after several days' debauch when sent to sick bay 

on board ship showed signs of alcoholic poisoning; disappeared next morning from 
sick bay, a thorough search failing to disclose him. Held: As there was not sufficient 
evidence to warrant conclusion of death, final action as to whether or not he was 
dead was suspended for one year and it was directed that an entry to this effect be 
made on the man's servicerecord. (File 26250-614, Sec. Navy, Jan. 4, 1915; Ct. of Inq. 
Bee. No. 6123; C. M. O. 6, 1915, 14.) On February 5, 1916, the department held that 
"a period of over one year has elapsed since this occurrence and during which time no 
trace has been found of" the deceased, the facts pertinent to the case warrant the 
conclusion that he met his death by accidental drowning, not in line of duty and not 
due to his own misconduct. File 26250-614:2, Sec. Navy, Feb. 5, 1916. 

19. Same — Where an enlisted man disappeared from his ship, which was within easy 

swimming distance of the beach, and board of investigation unable to come to a defi- 
nite opinion, the department held that there was not sufficientevidence to warrant 
conclusion of death and final action was postponed one year. File 26250-631, Sec. 
Navy, Feb. 11, 1915; Bd. of Invest. Bee. No. 6137; C. M. O. 10, 1915, 10. 

20. Same— Absent and unheard of— In the case of an enlisted man who had been absent 

and unheard of from December 24, 1907, to date, the department held that this evi- 
dence was sufficient to raise the presumption of death, and it was directed that the 
mark of desertion entered on his enlistment record be removed as erroneous and an 
entry made describing the details, and that the department now holds that he is 
dead. File 7657-280, Sec. Navy, Feb. 20, 1915; C. M. O. 10, 1915, 9. 

21. Same— Foreign port— Where ah enlisted man disappeared mysteriously in a foreign 

port while on authorized liberty; several thorough but unsuccessful searches were 
made; American consul reported later that there had been many mysterious dis- 
appearances since the outbreak of the War and that the man might have been the 






LINE OF DUTY AND MISCONDUCT CONSTRUED. 337 

victim of foul play; the commanding officer recommended that mark of desertion be 
removed. Held, that, while the length of absence necessary to raise presumption ol 
death is generally conceded by common law to be seven years, this does not prevent 
an inference of death from absence for a shorter period, where the circumstances 
attending the case force a conviction that death must have occurred; but on the facts 
of this case, however, there is no more reason for holding that the man is dead than 
that he deserted, and there is not sufficient evidence to warrant the removal of the 
mark of desertion and closing his record as bv death. File 7657-277, J. A. G., Feb. 6, 
1915; C. M. O. 10, 1915, 9. See also File 26322-3:1, J. A. G., Dec. 9, 1915. 

22. Distinction important between acts of duty and those of personal nature — An 

important fact which should not be overlooked by officers serving on boards of inquest 
or courts of inquiry in cases of this character is that, while " every person who enters 
the military service of the country — officer, soldier, sailor, or marine— takes upon 
himself certain moral and legal engagements of duty, which constitute his official or 
professional obligations," nevertheless, "though a soldier or sailor, he is not the less a 
man and a citizen, with private rights to exercise and duties to perform; and while attending 
to these things he is not in the line of his public duty." (Attorney General's opinion, 
May 17, 1855. See also File 26250-534, Sec. Navy, March 10, 1914.) In the same 
opinion the Attorney General further stated on this point: "It is impossible to say 
that the phrase casualties or injuries received 'in the line of duty' comprehends all the 
possible misadventures of mere private life, which may happen to an officer in his 
personal affairs, and wholly disconnected from his public duty, though he be not on 
furlough." In other words, as was held by the United States Circuit Court of Appeals 
(Rhodes v.V.S.,79 Fed., 740), in order to support a finding of line of duty u the service 
must have been the cause of the disease [or injury] and not merely coincident with it in time." 

23. Drowning — Absent without leave— Deceased with other enlisted men left naval 

station on board a private gasoline launch without permission from proper authority; 
engine caught fire, all jumped overboard to swim to beach, but deceased drowned. 
Held: Not line of duty and misconduct. File 26250-531, Sec. Navy, Sept. 12, 1914; 
Ct. of Inq. Rec. No. 6062; C. M. 0. 10, 1915, 9. 

24. Same— Absence, unauthorized— Deceased, returning from unauthorized absence, 

intoxicated, attempted to go aboard ship over unauthorized gangway, fell overboard, 
and was drowned. Held: Not line of duty and misconduct. File 26250-758, Sec. 
Navy, April 19, 1916; C. M. 0. 13, 1916, 8. 

25. Same— Bathing on Government territory, etc.— Deceased was drowned while bathing 

on Government territory at place designated by commanding officer, who had issued 
specific instructions encouraging men under his command to learn to swim; deceased 
was not on liberty, and act in which he was engaged when drowned was a customary 
one at the post, approved by the commanding officer. Held: Line of duty and not 
misconduct. File 26250-669, Sec. Navy, May 20, 1915, Bd. Inquest; C. M. O. 20, 
1915, 7. See also File 26250-521:2, Sec. Navy, April 18, 1914. 

Deceased on duty at the Naval Station, Guantanamo, obtained permission to use 
a Government-owned dinghy for a sail as an amusement. Accidentally fell over- 
board and was drowned. Was not intoxicated. Held: Line of duty and not miscon- 
duct. File 26250-853. See also Line of Duty and Misconduct Construed, 57, 58 
(second paragraph). 

26. Same— Collision— Deceased, a member of an organized funeral party returning to 

station, jumped from a cutter which had collided with a tug. While evidence showed 
that jumping from the cutter was an error of judgment on the part of the deceased, 
still such error did not extend to culpabilitv. Held: Line of dutv and not misconduct. 
File 26835-553, Sec. Navy, April 12, 1916; C. M. O. 13, 1916, 7. 

Deceased, members of a cutter's crew at a training station, attempted to turn boat 
in breaking sea. Error of judgment on part of coxswain who was drowned with other 
members of crew. Held: Line of duty and not misconduct. File 26250-763, Sec. 
Navy, Apr. 1, 1916; C. M. O. 13, 1916, 8. 

Deceased, late auxiliary officer, while on board the Solace disappeared. Several 
days later his body was found and disclosed that he had met death by drowning. 
» No evidence of self-destruction or suicidal intent. Held: Line of duty and not mis- 

conduct. File 26250-774, Sec. Navy, Apr. 27, 1916; C. M. O. 13. 1916, 7. 

Deceased, while acting as stern man on a cutter, fell overboard as a result of a 
fainting spell. Autopsv revealed weak heart. Held: Line of duty and not miscon- 
duct. File 26250-779, Sec. Navy, Apr. 20, 1916; C. M. O. 13, 1916, 7. 



338 LINE OF DUTY AND MISCONDUCT CONSTRUED. 

Deceased, an acting ship's cook, went to ship's side to dump eggshells, fell over- 
board, and was drowned. Evidence showed that life line had been l left down. Held. 
Line of duty and not misconduct. File 26250-796, Sec. Navy, May 26, 1916; C. M. 0. 1 ,, 

27. Same^Entering boat on duty-Deceased on duty ashore as member oi ; firing party 
slipped as he was entering the steamer and went overboard. Held: Line of duty 
andnot misconduct. Fill 26250-613, Sec. Navy, Dec. 15, 1914, Bd. of Inquest; C. 

Same^FieK 



28. 



to swim across a small inlet infield uniform with rifle _ slun^ across^shoulder and 



wearing cartage belt. Held: Line of duty and not misconduct File 26250-652, 
Sec Navy, Mar oh 22, 1915; Ct. Inq. Rec. No. 6183; C. M. O. 12 1915, 9. 
29 Same^-Libertv-Collision of merchant ships- Deceased while on leave of absence took 
M " pTsSge on a Steamship which sank at sea and he was not ported among the survivors. 
Originallv the department held that there was no presumption of death (File '6J3/-227 
gee Nan Apr. 9, 1914), but at this date, one year and two months after steamship 
sank thYdepartment declared him dead from the date the steamship sank Held. 
Not line of duty but not misconduct. File 7657-227, Sec. N avy, Apr. 10, 1915; C. M. O. 

^bSse'd fell overboard from a shore boat while returning to Ms ship from author- 
ized liberty. Deceased was sober at the time and his death was found due , to acci- 
dental drowning. Held: Not line of duty and not misconduct. File 262o0-789, bee. 
Naw May5, 1916; C. M. O. 17, 1916, 10. ,., 

Same^Liberty-From hospital-Deceased found in water near shore , alive but died 
shortlv after being removed from water; was on authorized liberty from hospital 
wherfhe had been surveyed for blindness in one eye resulting from syphilis .(org 
not in line of duty); no evidence of intoxication. Held: Not line of duty but not 



30. 



misc 



onduct. File 26250-618, Sec. of Navy, Jan. 19, 1915, Bd. of Inquest; C. M. O. 



19 Libe?ty for the express purpose of swimming. Held: Line of duty and not miscon- 
duct File 26543-151:8. Sec. Navy, Nov. 4, 1916. See also Line of Duty and Mis- 

31. ^Z-U^-ZTA^-moe^a having returned from liberty tatarioated 
made an unprovoked assault upon the petty officer having the da 3 s duty v ho 
placed his hand over deceased's mouth to stop him from usmg boisterous language, 
deceased struck petty officer and then rushed him and both went overboard; petty 
officer was rescued but deceased failed to come to : surface Held: Xotlme , of duty 
and misconduct. File 26250-617, Sec. Navy, Jan. 15, 191o; Ct. of Inq. Rec. No. 6122, 

32 Same^-Libertv-Intoxicated-Deceased while on authorized liberty was seen intoxi- 

' cated on wharf waiting for boat to return him to his station and shortly after was heard 

yelling for help and seen struggling in the river. An old cut on deceasedshead was 

opened up by fall. Held: Not line of duty and misconduct. File 26250-612, Sec. 

Naw, Dec. 12, 1914, Bd. of Inquest; C. M. O. 6, 191o, 13. 

33. Same^Libertv-Intoxicated-Deceased and another enlisted man went boatmg in 
the wherry of their ship ; upon returning the deceased fell overboard ; both mtoxicated. 
Held: Not line of duty and misconduct. File 26250-625, Sec. Navy, Jan. 25, 1915, 
Bd. of Inquest; C. M. O. 6, 1915, 13. . . . . „„„ 

34 Same-Libertv-Intoxicated-Deceased with permission went canoeing in a canoe 

owned by the post exchange for use of enlisted men: became mtoxicated; canoe ^cap- 
sized; calm night; deceased not good swimmer; excellent record Held. Not line of 
duty and misconduct. File 7657-266:2, Sec. Navy, Jan. 8, 1915, Bd. of Inquest, 

35 Same-^LibertY— intoxicated— Deceased while on authorized liberty was drowned by 
' the capsizing of canoe in which he was returning to station; death due to his careless- 
ness and inebrietv. On December 11, 1914, department held that since body was not 
found there was insufficient evidence to warrant conclusion of death; body found on 
February 17 1915 Held: Not line of duty and misconduct. File 76o7-266:4, Sec. 
Navv, March 2, 1915, Ct. Inq. Rec. No. 6114; CM. 0.12,1915,9. . 

36. Same—Liberty— Intoxicated— Deceased while on authorized liberty became intoxi- 
cated; resisted being placed on tug which would return him to station and duty and 
was placed on board by force; became subdued and apparently went to sleep; jumped 
overboard with apparent intention of returning to beach, and drowned. Held: JNot 
line of duty and misconduct. File 26250-658, Sec. Navy, Apr. 10, 191o, Bd. of In- 
quest, C. M. O. 16, 1915, 6. 



LINE OF DUTY AND MISCONDUCT CONSTRUED. 339 

37. Same— Liberty— Intoxicated— Deceased, returning from liberty in a private boat; 

intoxicated; attempted to jump from boat to dock and fell in water. Held: Not line 
of duty and misconduct. File 26250-663, Sec. Navy, May 22, 1915; Bd. Inquest No. 
6230; C. M. O. 20 ; 1915, 7. 

38. Same — Liberty — Violated orders— Deceased having permission to go on liberty, went 

boating in private boat without first obtaining the necessary express permission and 
pass, as required by orders of post; boat capsized. Held: Not line of duty and miscon- 
duct. File 26250-525, Sec. Navy, Mar. 21, 1914; Ct. of Inq. Rec. No. 5934; C. M. O. 10, 
1915, 9. 

39. Same — Ship's wherry on duty— Three deceased were in ship's wherry on duty; when 

wherry about 6 to 20 feet astern of ship which had a little more than steerageway, 
engines were backed * speed; wherry and men carried into swirl and sucked under. 
Held: Line of duty and not misconduct. File 26250-641, Sec. Navy, March 24, 1915; 
Ct. Inq. Rec. No. 6186; C. M. O. 12, 1915, 9. 

40. Same— Swimming party— Deceased while attempting to qualify in swimming in ac- 

cordance with a fleet order, by swimming from the boom to the gangway of his ship, 
was drowned. Held: Line of duty and not misconduct. File 26250-541, Sec. Navy, 
Mar. 27, 1914; Bd. of Invest. Rec. No. 5943; C. M. O. 10, 1915, 8. 

41. Same— Swimming party — Deceased, while a member of a regularly detailed swimming 

party in charge of an officer, was drowned. File 26250-632, Sec. Navy, March 1, 1915; 
Ct, Inq. Rec. No. 6162; C. M. O. 12, 1915, 9. 

42. Same — Venereal restricted list — Deceased while on venereal restricted list was found 

floating in water near his ship with life preserver around him; nothing to show how 
he happened to be in water. Not entitled to liberty. Held: Not line of duty and 
misconduct. File 26250-627, Sec. Navy, Feb. 3, 1915, Bd. of Inquest; C. M. O. 10, 
1915, 8-9. 

43. Erroneous conception of what constitutes "Line of Duty"— The prevailing 

idea entertained by officers serving on boards of inquest seems to be that in all cases 
where the death of a person in the service was not the result of his own misconduct 
it must be held to have occurred in the line of duty. Thus, in three cases recently 
considered by the department, it appeared that the deceased men, while on leave of 
absence, had gone to a hotel together, engaged a room, and were later found asphyxi- 
ated as the result of a gas jet in the room having been left turned on and unlighted 
when they retired. Granting, in such cases, that death was accidental and was not 
caused by any fault of the deceased, it is nevertheless difficult to perceive in what 
manner the board arrived at the conclusion, as it did, that their deaths were due to 
an act of duty. (File 26250-238, 239, and 240.) These cases do not materially differ 
from another of recent occurrence, in which the deceased, while on leave of absence 
and not performing any act even remotely connected with the service, was run over 
by a train, and the board of inquest found that his death was due to an act of duty. 
(File 26250-228.) In anothercase, the deceased, while on liberty in Cherbourg, France, 
was murdered by a shipmate in consequence of some difficulty between the two men 
of a wholly personal nature. Here, again, the board of inquest held that the death 
was due to an act of duty. ( File 26250-214. ) Many other cases of like character might 
be cited, in all of which the department found it necessary to disapprove the finding 
of the board of inquest, for the reason that there was nothing in the evidence to warrant 
the conclusion that death was the result of an act of duty. 

As remarked by the Attorney General in an opinion rendered May 17, 1855, the law 
"does not say 'any disease [or injury] not the consequence of misconduct,' and if 
that had been the category contemplated by the legislator he would have propounded 
it in simple and apt phraseology." It follows, therefore, that the words "line of 
duty" can not properly be held to embrace every cause of death not due to the mis- 
conduct of the deceased, but are used by Congress in a more limited sense in its various 
enactments relating to the disability or death of persons in the Army or Navy. This 
conclusion is further supported by the fact that the law providing for the allowance of 
six months' pay to the widow or designated beneficiary of deceased officers or enlisted 
men of the Navy originally applied bv its terms to cases where the death was due 
to "wounds or disease contracted in line of duty"; but by act of August 22, 1912 
(37 Stat. 328), Congress substituted the words "not the result of his own misconduct " 
for the words "contracted in the line of dutv," this amendment being made for the 
express purpose of giving the law a broader application. (43 Cong. Rec. 2686. ) 

44. Exercising. See File 26250-89. See also Line of Duty and Misconduct Construed, 

7, 8, 9, 16, 25, 40, 41, 52, 57, 58, 60. 



340 LINE OF DUTY AND MISCONDUCT CONSTRUED. 

45. Explosion — Deceased met death as a result of an explosion caused by his entering a 

coal bunker and striking a match. Held, Not line of duty and misconduct. See 
Line of Duty and Misconduct Consteued, 71. But see File 26250-746. 

Explosions on board the submarine E-2. Held: Line of duty and not misconduct. 
File 26283-988, 26250-750, 26250-751, Sec. Navy, Feb. 17, 1916. 

46. Same— Boiler explosion. See Line of Duty and Misconduct Construed, 6. 

47. Same— Explosion of gasoline while cleaning bilges. See Line of Duty and Miscon- 

duct Construed, 111. 

48. Falling from mainmast— Deceased was sent up mainmast to tar down topgallant 

stay. Upon attempting to enter boatswain's chair he apparently lost his head and 
felf to deck. Prior to going up he made no objection and weather was favorable. 
Held: Line of duty and not misconduct. File 26250-615, Sec. Navy, Dec. 23, 1914; 
Ct. of Inq. Rec. No. 6111; C. M. O. 6, 1915, 12. 

49. Falling and injuring knee— Wnile sweeping down deck under orders a sweeper was 

accidentally tripped and thrown to deck by being bumped by another sweeper and 
knee was permanently injured, necessitating his discharge from the service; no sky- 
larking. Held: Line of duty. File 262S3-829, Sec. Navv, Jan. 19, 1915; Bd. of Invest. 
Rec. No. 6127; C, M. O. 6, 1915, 12. 

50. Falling into drydock— Deceased while walking on deck of his ship which was in 

drydock stumbled on some hose, fell backward under upper life line and over ship's 
side into drydock. Lower two life lines had been unrigged to facilitate work. Held: 
Line of duty and not misconduct. File 26250-611: 2, Sec. Navy, Jan. 4, 1915; Ct. of 
Inq. Rec. No. 6094; C. M. O. 6, 1915, 12. 

51. Foot crushed— A bowman in sailing launch lost his right foot by having it caught 

in bow painter of his launch, a heavy swell causing painter to suddenly tauten. 
Held: Line of duty. File 26283-806, Sec. Navy, Nov. 11, 1914; Bd. of Invest. Rec. 
No. 6086; C. M. O. 6, 1915, 12. 

52. Football. File 458-5. 

53. General rule— No general rule, each case must be determined upon its own facts. 

See Line of Duty and Misconduct Construed, 70. 

54. Heart failure — Deceased, while seated in band room, his regular station, dropped dead. 

Although there was evidence to show that during the preceding 24 hours the deceased 
had slightly indulged in the use of intoxicating liquor, an autopsy revealed that death 
was due to acute dilation of the heart resulting from pneumonia contracted in line of 
duty. Held: Line of duty and not misconduct. File 26250-780, Sec. Navy, April 14, 
1916; CM. 0.13, 1916,8. 

55. Hernia. See Surgical Operations, 3, 6. 

56. Horse play. See Line of Duty and Misconduct Construed, 71. 

57. Horse, thrown from— Deceased officer, on duty in a foreign country, absent from 

command with permission, dined at hotel about 2 miles from post. While re- 
turning, and riding a Government-owned horse, the horse slipped and deceased fell 
to pavement, receiving injuries from which he died shortly after. Held: Not line of 
duty but not misconduct. File 26250-743:4, J. A. G., May 6, 1916. See also Line of 
Duty and Misconduct Construed, 25. 

58. Hunting with express permission— Deceased met his death without fault of any 

kind on his part, while hunting under express permission to be absent for that purpose. 

It is held by the Department of the Interior in Pension Cases, the War Department, 
and has heretofore been held by the Navy Department, that men killed while en- 
gaged in athletic sports or exercises encouraged by regulations, meet their death in 
line of duty, although on liberty, where the permission to be absent was granted for 
the express purpose of engaging in such athletic sports or exercises. (See 9 P. D. 227; 11 
P. D. 55.) 

The Naval Instructions, 1913, 1-2620, contains the following provisions: "The 
commanding officer shall encourage the men to engage in athletics, fencing, boxing, 
boating, and other similar sports and exercises. Gymnastic outfits will be furnished 
by the department to vessels requesting them. When the weather and other cir- 
cumstances permit, he shall establish in the routine of exercises and drills a regular 
period for swimming, such exercise to include every enlisted person on board, except 
those excused by the surgeon." 

The evidence in this case shows that hunting is encouraged in the service as an 
athletic sport or exercise pursuant to the foregoing regulation, and that some of the 
vessels are supplied with shotguns and ammunition for hunting purposes. Inasmuch 
as this department encourages athletic sports and exercises by explicit provisions of 
regulations, it can not consistently, at the same time discourage such athletic sports and 
exercises by holding that a man who is given express permission to engage therein, 



LINE OF DUTY AND MISCONDUCT CONSTRUED. 341 

and while so doing, is killed without fault on his part shall be marked on the records 
■ as having met his death "not in line of duty. " Also, in the interest of uniformity in 
the practice of the different departments of the Government having to decide the same 
or similar questions, as well as due regard for precedent, the finding of "line of duty " 
in this case should stand. Held: Line of duty and not misconduct. File 26250-510:1, 
J. A. G. March 16, 1914. Approved by Sec. Nav. March 16, 1914; Ct. Inq. Req. No. 
5975. See also Forms of Procedure, 1910, p. 11, of corrections inserted between pp. 224 
and 225; Manual Med. Dept.,U. S. N., 1914, p. 167; Army Bulletin, No. 14, April 12, 
1915. See also Line of Duty and Misconduct Construed, 30, 60. But see File 
26250-622:1, Sec. Navy, Feb. 19, 1916; Ct. Inq. Rec. No. 6140. 

59. Liberty — Deceased was returning from authorized liberty in a ship's boat. Culpable 

negligence of those in charge of the boat caused a collision which resulted in the death 
of the deceased. Held: Line of duty and not misconduct. File 26835-621, Sec. 
Navy, Jan. 6, 1917; Ct. Inq. Rec. See also Line op Duty and Misconduct Con- 
strued, 83. 

60. Same—If a man is given permission to go on shore for the express purpose of engaging 

in athletic sports or exercises encouraged by the Navy Regulations, or permission 
to go swimming or boating, and is injured or killed without negligence or other act 
the result of his own misconduct, the finding should be line of duty. Where, however, 
a man is granted liberty for his own purposes, and while on liberty goes in swimming 
and is drowned, the mere fact that swimming is encouraged by the regulations is 
not sufficient ground for holding that his death occurred in line of duty. In such a 
case the general rule applies, and it must be held that his death resulted from the exer- 
cise of his private rights and was not caused by "an act of duty performed." (File 
26250-277:1; 14 P. D. 114). See Line of Duty and Misconduct Construed, 29-38. 

61. Same— Assisting an injured shipmate back to ship. See Line of Duty and Mis- 

conduct Construed, 82. 

62. Same— Returning from. See Line of Duty and Misconduct Construed, 83. 

63. Medical operation — Deceased was operated on for enlarged tonsils, in a naval hospital, 

local anesthetic (cocaine) being used; all usual precautions were taken prior and during 
operation; death caused by an idiosyncrasy due to effects of the anesthetic. Held: 
Line of duty and not misconduct. File 26283-518, Sec. Navy, Feb. 13, 1913; Ct. of 
Inq. Rec. No. 5676; C. M. O. 10, 1915, 8. 

64. Same— Hernia. See Surgical Operations, 3, 6. 

65. Midshipman— Incurring disease or injury during course at Naval Academy. See 

File 5252-24, Sec. Navy, May 25, 1909. 

66. Misconduct. See Misconduct. 

67. Motorcycle. See Line of Duty and Misconduct Construed, 16. 

68. Natural death— Deceased while on authorized liberty was found dead in a rooming 

house; board unable to determine cause of death. Held: Not line of duty but not 
misconduct. File 26250-607, Sec. Navy, Nov. 20, 1914; Bd. of Inquest Rec. No. 6089; 
C. M. O. 6, 1915, 13. See also Moore v. IT. S. (48 Ct. Cls. 110). 

69. Same — Deceased, while absent with leave from proper authority, died a natural death 

in a private hospital, from uremia, a complication of acute nephritis which was con- 
tracted in line of duty. Held: Line of duty and not misconduct. File 26250-673, 
Sec. Navy, May 22, 1915, Bd. Inquest; C. M. O. 20, 1915, 7. 

70. No general rule — Each case must be determined upon its own facts — As was stated 

by the Attorney General in an opinion rendered July 22, 1881, with respect to the 
question of what constitutes disability incurred in line of duty, "it is impossible 
to lay down a general rule which will be applicable to cases of this kind, or to the differ- 
ent aspects which the * * * claim might present, as the facts shall be developed 
by the evidence." The question to be determined in each case is not what was the 
status of the deceased when the disease was contracted or the injury received, nor 
whether such disease or injury was the result of his own misconduct, but " "Was the 
cause of disability or death a cause within the line of duty or outside of it? Was 
that cause appertaining to, dependent upon, or otherwise necessarily and essentially 
connected with duty within the line or was it unappurtenant, independent, and not 
of necessary and essential connection?" In other words, to constitute " line of duty." 
"an act of duty performed must have relation of causation, mediate or immediate. 
to the wound, the casualty, the injury, or the disease producing disability or death." 

71. On board ship or at a naval station, etc.— So, also, many cases arise where the injury 

causing death was received while the deceased was in a duty status, so far as being 
present on board a vessel or at a station to which he was attached is concerned , and yet 
the circumstances are such that it can not be held to have beep caused by an act of 
duty. For example, in a case where the death of a man resulted from injuries received 



342 LINE OF DUTY AND MISCONDUCT CONSTRUED. 

by him while "entering a hunker and striking a match there," which acts "were 
both against orders," the department held that his death was the result of "mis- 
conduct or violation of duty" on his part, and was not, therefore, the result of an injury 
received in the line of duty. (7 Op. Atty. Gen. 150; File 26543-55.) Again, it has 
uniformly been held that an enlisted man is not in line of duty while engaged in 
scuffling or squabbling with his companions, or voluntarily engaged in what is com- 
monly known as "horseplay," although at the time on board the ship to which he 
was attached. (5 P. D., 47; 6 P. D., 22; 14 P. D 81; P. D., 506; Rhodes v. TJ. S., 79 
Fed., 740; File 26250-66.) And "it has repeatedly been held that where the death 
of the soldier * * * was caused by an overdose of a narcotic or other poison, 
which had been either prescribed originally by a physician in the TJ. S. service or 
taken upon the soldier's own responsibility through mistake and with no suicidal 
intent, such death cause can not be accepted as a competent basis for claim." (1 
P. D., Ill; File 26250-288:2.) 

72. Operations. See Line of Duty and Misconduct Construed, 63; Surgical Oper- 

ations, 3, 6. 

73. Orders— Violation of. See Line of Duty and Misconduct Construed, 71, 107-112. 

74. Poison — Deceased by mistake took bichloride of mercury. No evidence of intent 

to commit suicide. Held: Not line of duty but not misconduct. File 26250-657, 
Sec. Navy, Apr. 10, 1915, Bd. of Inquest; C. M. O. 16, 1915, 5. 

75. Same — Deceased while on authorized liberty, running from direction of a dance hall 

fell in street, was picked up by enlisted men, carried to drug store, sent to hospital 
in patrol wagon, died en route; result of chemist's analysis of stomach showed carbolic 
acid poisoning; no evidence of intent to commit suicide. Held: Not line of duty 
but not misconduct. File 26250-605:2, Sec. Navy, Dec. 11, 1914; Ct. of Inq. Rec. 
No. 6098; C. M. O. 6, 1915, 13. 

Deceased was administered bichloride of mercury by a hospital apprentice on duty, 
by mistake for Epsom salts. Held: Line of duty and not misconduct. File 26250- 
593, Sec. Navy, Oct. 8, 1914; Ct. Inq. Rec. 6120; C. M. O. 6, 1915, 12. 

76. Same — Suicide. See Line of Duty and Misconduct Construed, 94, 95, 97. 

77. Predisposition— Death or injury while on duty, resulting from disability existing prior 

to enlistment, does not come within the "line of duty" category. (16 P. D., 172.) 
However, when a disability which originated prior to enlistment, but was apparently 
cured prior to and at the date of enlistment, is revived and aggravated as the im- 
mediate result of an accident or of an incident in the line of duty, the injurious conse- 
quences of such aggravation may amount to line of duty. (3 P. D., 41.) In such a 
case it is necessary to establish some cause or injury resulting from or incurred in 
service in line of duty sufficient to produce a recurrence of said disability — some cause 
without which the recurrence would not have happened — and not merely natural 
aggravation of an already existing disability. (3 P. D., 187.) 

Predisposition to disease is no bar to pension if the disease did not develop until 
after claimant's admission to the service. (3 P. D., 228; 16 P. D., 413.) See File 
7657-116. J. A. G., Mar. 1, 1912. See also File 26253-430, J. A. G., Oct. 26, 1915. 

78. Preexisting cause — An enlisted man was admitted to a naval hospital for treatment 

with hccmoptvsis (spitting of blood) 14 months after he had enlisted, and a historv 
of similar condition existed two years before (prior to enlistment). Held: That it 
is considered that the disease in question was not incident to the service, and also 
held it to be not in line of duty. File 7657-320, Sec. Navy, Oct. 25, 1915; C. M. O. 35, 
1915, 9. See also Moore v. U. S. (48 Ct. Cls. 110). 

79. Presumption of death. See Line of Duty and Misconduct Construed, 18-21. 

80. Prisoners— While a prisoner may be injured or killed in line of duty, as shown by the 

examples given by the Attorney General in his opinion (7 Op., 150), such cases must 
be exceptional ones rather than the rule. Thus, where an enlisted man is performing 
hard labor under sentence of general court-martial, and an injury received by him is 
wholly due to execution of such sentence, it can not be held line of duty. ( File 26285- 
30, Sec. Navy, Apr. 7, 1909; File 26543-20, Sec. Navy, Jan. 28, 1909; 15 P. D., 54; 5 P. D., 
151 .) If an enlisted man is arrested or imprisoned, but on trial is adjudged not guilty, 
a disease incurred during his arrest and imprisonment is within the line of duty. 
(4 P. D., 103.) If the man died while awaiting trial, a disease so contracted is held 
to have been incurred inline of duty. (14 P. D.,213.) But in a case where a private 
in the Marine Corps was burned to death while in confinement by the civil authorities, 
before trial, and the evidence showed that his imprisonment was the result of mis- 
conduct (drunkenness) while on liberty, his death was held not to have occurred in 
the line of duty. (File 26250-218.) 



LINE OF DUTY AND MISCONDUCT CONSTRUED. 343 

81. Same— Prisoners injured while in confinement. File 26262-12673, A and B, J. A. G., 

July 6, 1912. 

82. Question not one of status— The status of an officer or enlisted man at the time of 

his death or at the time of contracting the disease, or receiving the injury occasioning 
same, is not controlling upon the question of whether his death occurred in the line 
of duty. As pointed out by the Attorney General, a person in the Navy, "whilst 
off duty, or on furlough, or under censure * * * may do or suffer tnings which are 
in the line of duty," the same as, on the other hand, "while on active duty, he may 
do or suffer things not in the line of his duty," and "any rule based on the assumption 
of its being impossible for an officer or soldier on furlough, on leave of absence, in 
arrest, under sentence, to perform acts, suffer casualties, receive wounds, or incur 
causes of disease in the line of his duty is not a truth, and, like all things not true, can 
not be conformable to justice or wisdom." And, again: "A soldier or sailor, while 
'under arrest, or ' in confinement,' is not discharged from the obligation of duty, and 
is occasionally called upon to perform duty in which he may distinguish himself and 
die honorably, and leave, it seems to me, a right of pension to his widow or children; 
as, for example, in the contingency of a post or a camp attacked by the enemy, or a 
ship in peril at sea. So, still more, of an officer on furlough. So it may be in the case 
of a soldier temporarily 'absent on leave,' nay, even of one compromised in some 
grave military offense." 

It has accordingly been held by the department in the case of a man who was 
stabbed while on liberty that his injuries were incurred in line of duty, it appearing 
that he was "stabbed by a drunken cabman while endeavoring to get an injured 
shipmate back to his vessel, an act in the line of his duty performed while on liberty." 
File 9331, Sec. Navy, Apr. 10, 1908. See also File 26250-777:3. 

Ordinarily, however, the injury or death of a person in the Navy while on leave or 
liberty is not the result of an act of duty. In such cases he is usually in the exercise 
of his private rights or the performance of private duties, and his injury or death, 
while coincident with the service in point of time, can not be held to have been caused 
by the service. " All the consequences of the absence of an officer or a soldier from his 
post of duty on his own motion for his own purposes of business or pleasure must be 
regarded as" outside the line of duty. While traveling from and returning to the post 
of duty on an ordinary furlough, given for such purposes, he is at his own risk as to 
causes of disability to which he may be subjected." (4 P. D., 54; 7 P. D., 102: 16 P. D., 
21; House Doc. No. 5, 54th Cong., 2d sess., p. 74.) Surrounding circumstances, how- 
ever, may work a modification of this rule, as in the example cited above. 

83. Returning from liberty— When a person returning from leave or liberty, and prior 

to expiration thereof, enters a boat provided by the Government for his transporta- 
tion back to his vessel, he is once more within the control of the naval authorities, 
and if killed or injured without the intervention of any act the result of his own mis- 
c mduct, a finding of line of duty would be proper. But if he is returning to his vessel 
in a private conveyance of his own selection, he would not be in a line of duty status, 
unless actually engaged in the performance of an act of duty. 

84. Self-inflicted wound. File 9542, Sec. Navy, Mar. 14, 1908. See also Line of Duty 

and Misconduct Construed, 89, 99. 

85. Shooting— Deceased was killed by the accidental discharge of a U. S. Springfield 

rifle in the hands of another enlisted man who was on duty as guard over a prisoner. 
Held: Line of duty and not misconduct. File 26250-530, Sec. Navy, Mar. 13, 1914; 
Ct. of Inq. Rec. No. 5961; C. M. O. 10, 1915, 8. See also File 26251-9021. 

86. Same — Deceased was a member of a patrol on duty in Vera Cruz, Mexico, during recent 

occupation. A member of another friendly patrol fired and fatally wounded deceased 
under the belief that he was firing at the enemy. Held: Line of duty and not mis- 
conduct. File 26250-556, Sec. Navy, June 6, 1914; Ct. of Inq. Rec. No. 59S0; C. M. O. 
10, 1915, 8. 

87. Speeding in automobile — A deceased naval officer met his death while driving his 

automobile at night over the public roads at the excessive speed of about 65 miles 
an hour in a pleasure race with the driver of another automobile. Held: "That this 
dangerous and reckless speed was the direct and proximate cause of his death, and 
that his death was not in the line of duty and was due to his own misconduct." File 
26543-144, Sec. Navy, Oct. 27, 1915; C. M. O. 35, 1915, 9. 

88. Strangulation — Deceased, while engaged in duty on board ship, fell into a drum 

room in such a position that he was unable to release himself. As a result and in 
the absence of tnnely aid the deceased was strangled to death. Evidence showed 
falling to be accidental. Held: Line of dutv and not misconduct. File 26250-778, 
Sec. Navy, Apr. 21, 1916; C. M. O. 13, 1916, 8. 



344 LINE OF DUTY AND MISCONDUCT CONSTRUED. 

89. Suicide— Not even in the case of death by suicide can it be stated as an unalterable 

rule that it was not due to an act of duty. Suicide is, however, so unlikely a result 
of an act of duty that the presumption in such cases must be against line of duty in 
the absence of evidence affirmatively showing that it was caused by the service. 
(File 26250-230:3.) This is in accordance with the Attorney General's opinion of 
May 17, 1855, in which it is stated that "if the suicide is alleged to have been produced 
by insanity, and thus insanity be put forward as the causa causans, then it must 
be shown that the insanity was the result of, or incidental to, acts of duty." So, 
also, in the case of Rhodes v. United States (79 Fed. Stat., 740) it will be noted that 
the court refers to "a wound or injury inflicted upon himself by a soldier" as one of 
the cases where the injury does not result from the service, although coincident with 
it in time. Nevertheless, in a proper case, death by suicide may be held to have 
occurred in the line of duty, but the facts supporting such a conclusion must be 
definitely ascertained and established. (File 26250-86; 1 P. D., Ill; 1 P. D., 108; 
5 P. D., 32; 17 P. D., 50. See also File 26250-132.) 

90. Same — Nostalgia caused midshipman to commit suicide. Held: Not line of duty and 

misconduct. File 26250-812. 

91. Same — Deceased on expeditionary duty in Haiti died from a self-inflicted gunshot 

wound. Brooded and worried over being on tropical duty. Held: Line of duty 
and not misconduct. File 26250-864, Sec. Navy, Dec. 28, 1916. 

92. Same — Deceased while on authorized liberty died by reason of self-inflicted gunshot 

wound while in the room of a prostitute. Held: Not line of duty and due to his own 
misconduct. File 26250-753, Sec. Navy, Feb. 5, 1916. 

93. Same— Death pact. Held: Not line of duty and misconduct. File 26250-529. 

94. Same— Cocaine. Held: Not line of duty and misconduct. File 26250-514. 

95. Same— Hair tonic. Held: Not line of duty and misconduct. File 26250-490. 

96. Same— In the case of an officer who committed suicide his death was held to be in line 

of duty and not due to his own misconduct, since it was affirmatively shown that his 
act was due to insanity caused by acts of duty. File 26250-567, Sec. Navy, Aug. 5, 
1914; Ct. Inq. Rec. 6028. 

97. Same— Deceased while ashore and absent over leave swallowed carbolic acid with 

intent to commit suicide. Held: Not line of duty and misconduct. File 26250-623, 
Sec. Navy, Jan. 23, 1915, Bd. of Inquest; C. M. O. 6, 1915, 14. 

98. Same — Deceased committed suicide by stabbing while intoxicated; was addicted to 

use of cocaine. Held: Not line of duty and misconduct. File 26250-610, Sec. Navy, 
Dec. 4, 1914, Bd. of Inquest; C. M. O. 6, 1915, 13. 

99. Same— Deceased, while absent without authority, committed suicide by shooting. 

Held: Not line of duty and misconduct. File 26250-634, Sec. Navy, Mar. 1, 1915, 
Bd. Inquest; C. M. 0. 12, 1915, 9. See also File 26250-636. 

100. Same— While on furlough. Held: Not line of duty and misconduct. File 26543-90, 

J. A. G., Jan. 24, 1913. See also File 26543-89, Sec. Navy, Jan. 6, 1913. 

101. Skylarking. See Line of Duty and Misconduct Construed, 49,71. 

102. Surgical operations. See Surgical Operations, 3, 6. 

103. Swimming. File 2195-63, J. A. G., June 7, 1907. See also Line of Duty and Mis- 

conduct Construed, 25-28, 40, 41, 60. 

104. Trespassing — Deceased while on authorized liberty tresnassed on a transmitting 

high tension power tower, received an electric shock, and fell 60 feet to ground. Held: 
Not line of duty and misconduct. File 26250-528, Sec. Navy, Mar. 16, 1914; Ct. of 
Inq, Rec. No. 5941; C. M. 0. 10, 1915, 9. 

Deceased was struck by train while a trespasser on railroad tracks in violation 
of definite law and sign boards. Held: Not line of duty and misconduct. File 
26250-788, June 6, 1916; C. M. O. 17, 1916, 10. 

105. Same — Deceased while intoxicated and on authorized liberty was pan over by an 

electric car at night while lying across the tracks. Held: Not line of duty and mis- 
conduct. File 26250-535, Sec. Navy, Mar. 25, 1914, Bd. of Inquest; C. M. 0. 10, 1915, 9. 

106. Turret— Crushed by. See Line of Duty and Misconduct Construed, 17. 

107. Violation of orders— Deceased while on duty coaling ship repeatedly disregarded 

the warnings of his immediate superiors by riding around on a revolving vertical 
coaling drum; his legs caught and he was carried around several times, his head 
striking a hatch and stanchion. Held: Not line of duty and misconduct. File 
26250-518, Sec. Navy, Apr. 6, 1914; Ct. of Inq. Rec. No. 5945; C. M. 0. 10, 1915, 9. 



LINE OF DUTY AND MISCONDUCT CONSTRUED. 345 

108. Same— Striking match in bunker. See Line of Duty and Misconduct Construed, 

71. 

109. Same — Carrying naked light while cleaning bilges. See Line of Duty and Mis- 

conduct Construed, 111. 

110. Same — Deceased had been drinking, but was not intoxicated. Returned to camp 

from liberty along railroad tracks which was in violation of post regulations. Held: 
Not line of duty and misconduct. File 26250-328. 

111. Same — Deceased, while on duty cleaning bilges in flreroom, carried an electric 

portable without steam-tight globe as required by Naval Instructions (Naval In- 
structions, 1913, 1-3377 (3)), which broke, igniting fumes of gasoline carried in open 
cans, was burned; use of gasoline in open cans was authorized by chief engineer (an 
ensign) and work was in immediate charge of a chief water tender who did not forbid 
the use of the gasoline in open cans or the naked light. Held: Line of duty and not 
misconduct. File 26250-619, Sec. Navy, Feb., 1915; Ct. Inq. Rec. No. 6139, 6151. 
See also File 26250-746:1, J. A. G., Feb. 17, 1916. 

112. Same— Boating in violation of orders. See Line of Duty and Misconduct Con- 

strued, 38. 

LITIGATION PENDING. C. M. O. 6, 1915, 8. See also Civil Courts, 2. 

LITIGATION IN CIVIL COURTS. 

1. Policy of Department. See Civil Courts, 7. 

LLOYDS, BOARD OF SURVEY. 

1. Naval officer— Acting as member of. See Merchant Vessels, 4. 

LOAN. 

1. Loaning money is not trading within meaning of R-1509 (2). C. M. O. 21, 
1910, 6-7. See also Borrowing Money; 1; Lending Money. 

LOBBYING. 

1. Contract — "The general principle is well settled that all contracts which call for what 
are commonly known as 'lobbying' services, are contrary to public policy, and there- 
fore void. Furthermore, even where the contracts specifically call for only 'pro- 
fessional' or 'proper' services by counsel in procuring enactment of legislation, they 
are held by the courts to be void where the compensation for such services is contingent 
upon their success." (See 15 A. & E. Enc. Law, 970-971.) File 17789-12:1, J. A. G., 
Feb. 25, 1910, p. 4. See also File 28091-5, Aug., 1911; Debts, 18; Claims, 5; Legisla- 
tion, 1, 2. 

LODGE. 

1. Medical officer— Signing death certificate, etc. See Medical Records, 5. 

LONGEVITY. 

1. Naval Academy service— Counts for Marine officer— Service in the Naval Academy 

as midshipman will count as longevity in subsequent service as commissioned officer 
of tne Marine Corps. File 1326-335, J. A. G., June 6, 1911. See also File 26521-148, 
J. A. G., Aug. 24, 1916, p. 4. 

2. Same— For the purpose of longevity pay, cadet midshipmen pursuing their studies 

at the Naval Academy during and since the Civil War were and are considered officers 
of the Navy. File 19245-43, J. A. G., Mar. 7, 1912. 

3. Pay — A naval officer is entitled in the computation of his longevity to credit for sen-ice 

as a midshipman at the Naval Academy. File 26255-95:1, J. A. G., Apr. 6, 1910. 
See also Constructive Service, 1. 

LOSS OF NUMBERS. See also Numbers, Loss of. 

1. Additional numbers— Court-martial sentence. See Additional Numbers, 2. 

2. Promotion— Officers failing in. See Promotion, 102, 135, 137, 138, 139, 155, 175, 1S6, 

194-196 199-203, 207. 

3. Same— Effect upon promotion of officer, not promoted to fill a vacancy. See Pro- 

motion, 102. 

4. Same— Suspension from promotion— Administrative officers determine the manner 

the loss of numbers shall be executed. C. M. O. 42, 1915, 12. 

5. Sentence— Of general court-martial. See Numbers, Loss of. 



346 MALICE. 

LOSS OF PAY. 

1. Remitted. See Allotments, 6, 7; Clemency, 39. 53; Pay, 23. 

2. Sentence— Court-martial. See Pay, 28, 98-110. 

LOSS OF RECORDS. See Record of Proceedings, 70; Summary Court-martial, 45. 

" LUDICROUSLY INADEQUATE SENTENCE." See Adequate Sentences, 11. 

LUNATICS. See Insanity, 9. 

LYING. See also Deceit; False Statements; Falsehood. 
1. Officer. See File 26262-2248. 

MACHINISTS AND CHIEF MACHINISTS. 

1. Command— Not eligible for. See Command, 9, 10, 11, 21. 

2. Promotion of— By the act of March 3, 1909 (35 Stat. 771), the title of warrant machin- 

ist was changed to machinist and provision was made for promotion and commission 
of chief machinist after 6 years' service from date of warrant, to rank with but after 
ensign. File 17789-15, J. A. G., Dec. 13, 1909. 

MAIL. 

1. Clerks. See Mail Clerks. 

2. Delay — Of mail reaching Office of Judge Advocate General from secretary's office. File 

26524-166:1, J. A. G., Aug. 10, 1915. 

3. Opening — Enlisted man tried by general court-martial for opening mail without 

authority. C M. O. 6, 1915, 3. 

4. Prisoners' mail. See Prisoners, 24. 

MAIL CLERKS. 

1. Compensation — Navy mail clerks, Reserve Destroyer Flotilla, Atlantic Fleet. File 

26254-1921, J. A. G., Dec. 22, 1915; 26254-1921, J. A. G., Feb. 10, 1916. 

2. Marine Corps— Detail for. File 25254-1961, J. A. G., Feb. 12, 1916. 

3. Oaths. File 3980-1185, J. A. G., Jan. 15, 1916. 

4. Trial by general court-martial— Navy mail clerks should be tried by the authority, 

civil or naval, first acquiring jurisdiction. File 7538-04, Sec. Navy, Oct. 4, 1909. 

5. Same — The irregularities of a Navy mail clerk resulted in loss of Government funds 

from post office on board ship. Court of inquiry recommended trial by general court- 
martial if the naval authorities possessed jurisdiction, and he was subsequently tried 
by general court-martial. Ct. Inq. Rec. 5698, Feb. 27, 1913; File 26283-524:1. 

MAINMAST, FALLING FROM. 

1. Enlisted man— Killed. See Line of Duty and Misconduct Construed, 48. 

MAJOR-GENERAL COMMANDANT. See Marine Corps, 47-50. 

MAKING A FALSE AND FRAUDULENT RETURN. 

1. Officer— Charged with. C M. O. 203, 1902. 

MAKING AND USING FALSE PAPERS IN VIOLATION OF A. G. N. 14, ETC. 

1. Officer— Charged with. C. M. 0. 88, 1895. 

MAKING FALSE AND FRAUDULENT OFFICIAL REPORTS. 

1. Officers— Charged with. C. M. O. 129, 1898; 18, 1907. See also C, M. O. 7, 1894; 74, 
1894; G. CM. Eec, 16956. 

"MAKING GOOD" TIME BY ENLISTED MEN. See Enlistments, 11; Marine 
Corps, 30. 

3IALICE. 

1. Absence of— Requisite in crime of manslaughter. C. M. O., 12, 1911, 6-8; 23, 1911, 

2-12. See also Manslaughter, 12, 13; Murder, 19. 

2. Definition— The word "malice" in law has a different signification from the popular 

meaning. In its legal sense it means a wrongful act done intentionally, without just 
cause or excuse. (See Words and Phrases, etc., v. 5, p. 4298, with numerous au- 
thorities.) Thus in United States v. Reed (86 Fed. Rep. 308, 312) it is said: 

"By 'malice' is not necessarily meant in the law a malignant spirit, a malignant 
intention to produce a particular evil. If a man intentionally does a wrongful act, 
an act which he knows is likely to injure another, that in law is malice; it is the 



MALICE. 347 

willful purpose, the willful doing of an act which he knows is liable to injure another, 
regardless of the consequences. That is malice, although the man may not have had 
a specific intention to hurt a particular individual * * *." 

It is also said, in Davis v. Pac. Tel. Co. (Cal.) (57 Pac, 764, 765), and similarly in 
other cases, that — 

"An act is, in contemplation of law, done maliciously where it is wrongful and is 
done intentionally." C. M. O. 10, 1912, 7. 

MALICIOUS. 

1. Assault— Willful and malicious assauft. C. M. O. 47, 1910, 8. See also Assault, 28. 

MALICIOUS DESTRUCTION OF PUBLIC RECORDS. 

1. Paymaster's clerk— Charged with. C. M. O. 28, 1887. 

MALICIOUSLY. 

1. Assault— An accused was tried by general court-martial under the charges (1) "Using 

obscene language toward his superior officer" and (2) "Assaulting and striking hissu- 
perior officer while in the execution of the duties of his office." 

The specification of the second charge alleged that accused did willfully and mali- 
ciously and without justifiable cause assault and strike his superior officer who was 
in the discharge of his duties. 

The court found the specification of the second charge proved in part, proved except 
the words "and maliciously" and the words "assault and," which words the Court 
found not proved. 

The court accordingly found the accused of the second charge "guilty in less degree 
than charged," guilty of "striking his superior officer while in the execution of the 
duties of his office." 

In connection with the finding upon the specification of the second charge, the 
department is of opinion that by the elimination of the word "maliciously," the 
gist of the offense and the criminal intent thereof are removed. The fact that a man 
is only guilty of willfully striking another person does not necessarily mean that such 
a person is guilty of any wrongful act and intentional wrongdoing. Thus, one may 
be guilty of willfully slapping or striking in a playful manner another person, without, 
however, being guilty of any criminal wrongdoing. 

In Words and Phrases Judicially Defined, volume 5, page 4311, under the caption 
of "Maliciously," it is stated that "An act. is, in contemplation of law, done mali- 
ciously where "it is wrongful and is done intentionally. (Davis v. Pacific Tel. and 
Tel. Co. (Cal.), 57 Pac, 764, 765.)" 

In view of the foregoing it would appear that the word "maliciously" is an im- 
portant ingredient of the offense as alleged in the specification. 

With reference to the finding of the court upon the second charge the department 
is of opinion that such is inconsistent. In other words, the court goes on record as 
being of the opinion that accused is guilty of striking but not assaulting his superior 
officer. It is not apparent to the reviewing authority that a man may intentionally 
and wrongfully strike another person without assaulting him. 

Words and Phrases Judicially Defined, volume 1, page 523, states that an assault 
is an attempt or even an offer to strike the person of another, and of course includes 
a successful attempt or an actual striking. 

The record was therefore returned to the court for the purpose of revising its findings 
and sentence. C. M. O. 30, 1910, 8-9. See also Assault, 19. 

2. Same — " Maliciously " not proved in specification of charge "Assaulting and wounding, " 

etc. but guilty of charge. See Assault, 19. 

3. Defined. See Maliciously, 1. 

4. Elimination of— "Maliciously" from specification in a charge of assaulting and striking 

removes gist of offense. See Assault, 3. 

5. Willfully— Differs from "maliciously" in not implying an evil mind. C. M. O. 23, 

1911, 5. 

« MALICIOUSLY AND WILLFULLY." 
1. Defined. G. C. M. Rec. 24983. 

MALICIOUSLY UTTERING SEDITIOUS WORDS. 

1. Enlisted man— Charged with. C. M. 0. 40, 1S87, 1. 



348 MANSLAUGHTER. 

MALINGERING. See also Words and Phrases. 

1. Enlisted man— Charged with (G. C. M. Rec. No. 31194). C. M. O. 42, 1915, 4. 

2. " Refusing to obey the lawful order of nis superior officer " — The accused was 

tried on a charge "Refusing to obey the lawful order of his superior officer." The 
court found the specification proved except the words "did refuse to obey and did 
willfully disobey" substituting therefor the words, "by willfully and persistently 
feigning illness did avoid obeying," and that the accused was guilty in a less degree 
than charged, guilty of malingering. The finding of the court is invalid, in that 
it substitutes a charge of an entirely separate and distinct character, and which is 
not a lesser degree of the one alleged. C. M. O. 37, 1909, 3. 

MALPRACTICE. 

1. Surgeon— Charged with and acquitted. C. M. O. 14, 1909. 

MALTREATING A PERSON SUBJECT TO HIS ORDERS. 

1. Officer— Charged with. C. M. O. 33, 1915. 

2. Warrant officer (commissioned)— Charged with. C. M. O. 48, 1914. See also, 

C. M. O. 78, 1896. 

MALTREATING AN OFFICER ON SHORE. 

1. Officer— Charged with. G. C. M. Rec. 8720. 

MALTREATMENT OF PERSONS SUBJECT TO HIS ORDERS. 

1. Officer— Charged with. C. M. O. 29, 1890, 6. 

MAN OF WAR. See C. M. O. 14, 1879, 3; 43, 1895, 2. 

MANDAMUS, WRIT OF. See Legal Liability, 3; Words and Phrases. 

MANDATORY REGULATIONS AND LAWS. 

1. A. G. N. 32— Directory rather than mandatory. C. M. O. 18, 1897, 3. 

2. A. G. N. 33— Directory rather than mandatorv. C. M. O. 18, 1897, 3. 

3. A. G. N. 34— Directory rather than mandatory. C. M. O. 18, 1897, 3. 

4. A. G. N. 45— Seems to be directorv rather than mandatory. C. M. O. 27, 1898, 1. 

5. A. G. N. 47— Is mandatory. C. M. O. 74, 1899, 2. 

6. A. G. N. 51— Is mandatory. C. M. O. 132, 1897, 3. 

7. A. G. N. 60— The 121st Article of War is almost identical with A. G. N. 60, but the 

latter, however, being made more mandatory in its terms by the use of the word 
"shall" instead of "may" as in the former. C. M. O. 88, 1895, 13. 

8. Disregard— Of a directory provision intended to promote method, system, uniformity, 

and dispatch in the modes of proceedings may render officers guilty thereof liable 
to legal animadversion, perhaps to punishment for noncompliance, yet compliance 
is not a condition precedent to the validity of their acts. In general, statutes directing 
the mode of proceeding by public officers are deemed advisory, and strict compliance 
with their detailed provisions is not deemed indispensable to the validity of the 
proceedings themselves unless a contrary intention can be gathered from the statutes 
construed in the light of other rules of interpretation. C. M. O. 27, 1898, 1. 

9. Regulation— Navy Regulations, 1913, R-787 (3), held to be not mandatory. C. M. O. 

6, 1915, 6; 41, 1915, 10. See also C. M. O. 49, 1915, 10, 12, 13-14. 

10. Statutes— The question whether or not a statute is mandatory or directory depends 

upon the intention of the legislature, to be ascertained from a consideration of the 
entire act, its nature, its object, and the consequences that would result from con- 
struing it one way or another. File 26260-1244, J. A. G., Apr. 14, 1911, p. 2. 

MANDATORY SENTENCES. 

1. Sentences — Dismissal mandatory on conviction of "conduct unbecoming an officer 

and a gentleman" in Army. See Conduct Unbecoming an Officer and a Gen- 
tleman, 6. 

2. Same — Not mandatory for "court-martial" to impose sentence of dismissal or im- 

prisonment in case of midshipman charged with "brutal or cruel" hazing. See 
Hazing, 6. 

MANIFEST IMPEDLMENT. See Statute of Limitations. 

MANSLAUGHTER. See also Murder. 

1. Care necessary. See Manslaughter, 12. 

2. Definition. See Manslaughter, 12, 13. 

3. Enlisted man— Charged with, and acquitted. C. M.0.33,1914,8-12;6,1915,4;49, 1915, 

12. See also G. C. M. Rec. 24242; 2487S. 



MANSLAUGHTER. 349 

4. " Feloniously and willfully." See Manslaughter, 13. 

5. Finding— Of "Manslaughter" on charge of "Murder." C. M. 0. 12, 1911, 5. 

6. Guard— Member of guard fired at escaping prisoner and killed bystander. See Man- 

slaughter, 9. 

7. Involuntary. See Manslaughter, 9. 

8. Jurisdiction— Of naval courts-martial to try an enlisted man on the charge of "Man- 

slaughter," and relative to the jurisdiction "of State and Federal courts. File 26250-81, 
J. A. G., Aug. 4, 1909. See also Murder, 2, 3, 8, 9, 14, 21-27. 

9. Member of guard — Fired at escaping prisoner and killed bystander — The accused 

was a member of a guard on duty in Haiti and furnished with a'45-cal. automatic pistol 
and ammunition. This guard was in charge of prisoners, one of whom was a native 
Haitien who was being detained on a charge of theft awaiting action of the com- 
manding officer. This prisoner broke from ranks and attempted to escape, running 
down a public highway toward a bridge. The corporal of the guard and the accused 
ran after him, the corporal shouting the general order to "stop that man," to which 
the fleeing prisoner gave no heed. The accused, slightly in advance of the corporal, 
not gaining upon the prisoner, called out at least twice to the prisoner to halt or he 
would fire, and finally seeing the prisoner was about to escape fired two shots at him. 
One of these shots struck and killed a native bystander, who was beyond the fleeing 
prisoner and not in view of the accused, and it was for the death of this person that the 
accused was tried by general court-martial on the charge of "Manslaughter." 

There was no evidence that the killing was intentional or that the accused acted 
maliciously or wantonly or otherwise than in good faith, nor was it established that he 
fired before the necessity for his doing so had become apparent. It was shown that 
the circumstances and conditions did not point to a reckless disregard of the safety 
of innocent bystanders present. 

There was evidence to establish conclusively that the accused acted in the per- 
formance of his duty as a member of the guard in obedience to the following orders 
from the Manual of Interior Guard Duty, United States Army, 1914, page 62, par. 305, 
which as established by both the evidence and Navy Regulations, 1913, R-4183, 
govern the Marine Corps on an occasion as the one in question: 

"If a prisoner attemps to escape, the sentinel will call, 'HALT.' If he fails to 
hait when the sentinel has once repeated the call, and if there be no other possible means 
of preventing his escape, the sentinel will fire upon him." See also Prisoners, 19. 

The record also disclosed evidence "that every man of the guard should do his 
part in detaining a prisoner, who attempts to escape." 

Held, under such facts the accused was acting in the performance of his duty as 
a member of the guard. He fired at the prisoner under the performance of an obliga- 
tion to prevent his escape by any means in his power. The accused, at the time 
of the shooting, was engaged in the commission of a lawful act, he acted with "due 
caution and circumspection, " and the department holds that for the reasons advanced 
in Court Martial Order No. 33, 1914, pp. 8-12 "the occurrence was excusable homicide 
of the class known as 'homicide by misadventure.' " (See also File 7657-125 J. A. G* 
Jan. 1912; C. M. 0. 37, 1915; Index-Digest, 1914, p. 28; U. S. v. Clark, 31 Fed. Rep. 710; 
U. S. v. Lipsett, 156 Fed. Rep. 71). C. M. O. 49,1915, 12-11; G. C. M. Rec. 31423. 

10. Midshipman— Charged with. C. M. 0. 128, 1905. 

11. Negligence. See Manslaughter, 12. 

12. Proof of— A probationer at the Naval Disciplinary Barracks, Port Royal, S. C, was 

tried by general court-martial on the charges "Manslaughter," and "Conduct to the 
prejudice of good order and discipline." 

The substance of the first charge was that the accused, while on duty as a sentinel 
over a detentioner, did neglect and fail to handle his rifle with due caution and 
circumspection, in consequence of which neglect and failure he did "kill and slay " 
the deceased. The gravamen of the second charge was that the accused did "make 
careless use of firearms," thereby causing the death of the deceased. 

The court acquitted the accused of the charge of " Manslaughter," found him guilty 
of "Conduct to the prejudice of good order and discipline," and sentenced him to con- 
finement at hard labor for two years, forfeiture of pay, and dishonorable discharge. 
The evidence, in brief , showed that on the morning of the fatality the accused demon- 
strated to another enlisted man the working of his rifle, which contained live ammu- 
nition in the magazine; that in the course of this demonstrat ion a cartridge probabl v 
entered the chamber of the rifle from the magazine without the knowledge of the 
accused; that two or three hours later the accused, while on duty as sentinel, gave a 



350 MANSLAUGHTER. 

rifle salute to the deceased ; that immediately thereafter the accused started to ' ' shoulder 
arms"; that when the position of "port arms" was reached the bolt of the rifle came 
partially open, and, with the rifle pointed toward the deceased, the accused pushed 
the bolt home, thus discharging the rifle and inflicting a mortal wound upon the de- 
ceased; that the accused thought that the rifle was cocked while he was carrying it; 
and that he knew the firing-pin lock was at "ready," but did not consider it necessary 
to put the "safety" on, as he was under the impression that the cartridges were all in 
the magazine. 

"Manslaughter is the unlawful killing of a human being without malice. It is of 
two kinds: First, voluntary — upon a sudden quarrel or heat of passion; second, in- 
voluntary—in the commission of an unlawful act not amounting to a felony, or in the 
commission of a lawful act which might produce death, in an unlawful manner, or 
without due caution and circumspection." (Sec. 274, U. S. Criminal Code, Mar. 4, 
1909, 35 Stat., 1088, 1143.) 

In the present case the accused did not kill the deceased in a sudden quarrel or heat 
of passion. He was not, therefore, guilty of voluntary manslaughter. Nor was this 
occurrence due to an unlawful act of the accused within the meaning of the above 
definition. " To be unlawful within the meaning of this rule, an act from which death 
results must have been intentionally wrong in itself, or malum in se, and not merely 
malum prohibitum" (a thing prohibited). (3 L. R. A. (N. S.), 1163.) The evidence 
shows that the accused spoke to the deceased while on duty; that he allowed the deten- 
tioner under his charge to get out of his sight, and that he gave the deceased a salute, 
all of which acts were in violation of post orders; and immediately preceded the fatal- 
ity. These acts, however, were merely mala prohibta, and their connection with 
the fatality is not directly established by the evidence. On the contrary, it appears 
that when the rifle was discharged, the accused was engaged in doing a lawful act, 
namely, bringing his rifle to "shoulder arms." The question thus narrows down to 
the point whether, at the time of the shooting, the accused was engaged in the "com- 
mission of a lawful act which might produce death in an unlawful manner or without 
due caution and circumspection." If so, he was guilty of manslaughter of the grade 
defined by the Criminal Code as involuntary. If not, the occurrence was excusable 
homicide of the class known as "homicide by misadventure." (3 L. R. A. (N. S.), 
1153.) In arriving at a conclusion in this case the questions to be considered are: Was 
the lawful act in which the accused was engaged (bringing his rifle to "shoulder arms") 
such an act as "might produce death"; and if so, did the accused perform this act 
"without due caution and circumspection"? As to the first point, the fact that the 
act in which the accused was engaged "might produce death" is mutely witnessed 
by the death of the deceased, which resulted therefrom. The sole remaining question, 
therefore, is whether the accused performed this act "without due caution and cir- 
cumspection." 

As the court, under the second charge, found that at the time in question the accused 
did "make careless use of firearms," thereby causing the death of the deceased, the 
department returned the record to the court for reconsideration of its finding and 
acquittal on the charge of manslaughter; inviting attention to the foregoing matters 
and. continuing as follows: 

It is proper to remark, however, that there are authorities to the effect that every 
careless act in the handling of firearms, which results in the accidental killing of 
another, is not sufficient to convict an accused of manslaughter. There may be care- 
lessness of such a trivial or slight degree that the accused will not be held criminally 
responsible for the resulting homicide, but the occurrence will be classified as "homi- 
cide by misadventure." The rule deducible from the authorities has been summa- 
rized as follows: 

"The degree of care and caution to avoid mischief, required to save from criminal 
responsibility one who accidentally kills another, is that which a man of ordinary 
prudence would have exercised under like circumstances; mere slight negligence, 
with no intent to do harm, under such circumstances that it could not reasonably be 
supposed that injury would result, does not furnish a foundation for criminal respon- 
sibility for a resulting death." (3 L. R. A. (N. S.), 1163.) 

In a previous case (G. C. M. Rec. 24878), the department quoted with approval the 
following statement on this subject from Cyclopedia of Law and Procedure (21 Cyc, 
765): 

"A homicide is manslaughter, even though committed in doing an act lawful in 
itself, if defendant was guilty of gross or culpable negligence, and such negligence was 



MANSLAUGHTER. 351 

the cause of the death. But the negligence must have been gross or culpable under 
the circumstances, and not merely such as would impose civil liability for damages, 
and it must have been the negligence of the defendant personally. Contributory 
negligence is no answer to a criminal charge of homicide, as it is to a civil action; nor 
is it any answer that the criminal negligence of others than the defendant contributed 
to the death." 

There is no doubt that the accused was guilty of carelessness in handling of firearms, 
which is the gravamen of the second charge, and the court, therefore, properly con- 
victed him of that charge. (Conduct to the prejudice of good order and discipline.) 
Was he not, also, guilty of gross or culpable negligence in killing the deceased, and 
therefore guilty of manslaughter under the first charge? Is a man in a military service, 
performing duty as a sentinel, guilty of gross or culpable negligence in carrying a loaded 
rifle without knowing that said rifle is loaded? Is a man in a military service, per- 
forming duty as a sentinel, guilty of gross or culpable negligence in carrying a loaded 
rifle, and one which he knew contained live ammunition in the magazine if not in the 
chamber, without having the firing pin lock at "safe?" Is a man in a military service, 
performing duty as a sentinel, guilty of gross or culpable negligence when, in bringing 
his rifle from ' ' order " to " shoulder arms ; ' ' he points it at another person and discharges 
it, thereby killing that person? And if so, is his negligence excused or aggravated 
from a military point of view by the fact that, although on duty as sentinel, he did not 
know that his piece was loaded; or by the fact that, knowing he had live ammunition 
in the magazine, if not in the chamber, he neglected the precaution of having his fir- 
ing pin lock at "safe?" In order to acquit the accused of manslaughter, the court 
must find that he was not guilty of gross or culpable negligence in these respects, but 
that his several acts of carelessness, which caused the death of the deceased, consti- 
tuted carelessness of such a trivial or slight character that a man experienced in the 
naval service is not to be held criminally responsible therefor; in other words, that 
persons in the naval service whose duties require them to handle dangerous weapons, 
may nevertheless handle such weapons in a careless and death-dealing manner, and 
yet, when brought to trial therefor, are to be acquitted of the lowest grade of criminal 
homicide known to the law. 

The court will reconvene for the purpose of reconsidering its findings upon Charge 
I and the sentence. If the court should be of the opinion that the carelessness of the 
accused was slight and trivial, bearing in mind his status as a person experienced in a 
military service, the court should properly adhere to its findings upon Charge I. If, 
on the other hand, the court should decide that the carelessness of the accused in this 
case, as shown by the evidence, was gross or culpable, the court should revoke its 
former findings on Charge I and substitute therefor a finding of guilty. In this con- 
nection, the court will bear in mind the fact that the accused loaded his rifle without 
knowing it; that he neglected to have his firing pin lock at "safe;" and that, in bring- 
ing his loaded piece from "order" to "shoulder arms" he pointed it at another man 
and discharged it, thereby causing the latter's death. The court will also bear in 
mind that casualties of this nature might occur many times a day in a military service 
but for the exercise of due care and circumspection which the law exacts of all persons 
armed with a dangerous weapon; and that those charged with the administration of 
the law can not relax its requirements without violating their duty and increasing the 
hazards and dangers of the service, which all should be diligent to minimize. 

The court in revision decided "respectfully to adhere to its former finding and sen- 
tence." In so doing, the court put itself on record to the effect that the carelessness 
of the accused, although such as to warrant the imposition of a sentence of confinement 
at hard labor for conduct to the prejudice of good order and discipline, was nevertheless 
too "slight and trivial" to render the accused guilty of manslaughter. C. M. O. 33, 
1914,8-11; 36,1914,6. 
13. Same— The record in the case of an accused, tried by general court-martial on the charge 
of "Manslaughter," was returned to the court by the department with the following 
remarks: 

The accused in this case was brought to trial on the charge of manslaughter. The 
court found the specification not proved and the accused of the charge not guilty, 
and accordingly acquitted him. 

From a review of the evidence adduced at the trial it appears that the accused 
while skylarking with or teasing some of his fellow marines, threw a piece of paper 
or pasteboard at another marine private which struck the deceased, whereupon there 
was an exchange of words, probably including the use of opprobrious epithets by 
the deceased, and which resulted in a proposition to settle the matter by a fight. 

50756°— 17 23 



352 MANSLAUGHTER. 

"While there was testimony indicating that the accused proposed the combat, the 
weight of evidence is to the effect that the deceased invited the accused to go out 
and settle the matter "behind the laundry," which was equivalent to the same 
thing. Whichever proposed the fight, however, the other necessarily acquiesced 
voluntarily therein, as there is no evidence to show that either was in any way forced 
by physical means into the encounter. 

There were eight witnesses who viewed the combat, and their testimony concerning 
the material details thereof is fairly clear and uniform. It began with an exchange 
of blows, the deceased finally being struck by the accused on the nose, after which 
there was a cessation for a short interval. During this time the accused asked the 
deceased whether he had had enough, or words to that effect, to which inquiry the 
deceased responded substantially that he had not, or "No; wait," indicating a desire 
to continue the encounter. The accused did not say that he had had enough, nor 
did he say to the deceased that he intended to withdraw, nor does the weight of the 
evidence tend to show that he did endeavor to withdraw; on the contrary five of the 
witnesses stated substantially that he stood his ground; one that he stepped back 
two steps; and another that he walked away. But the evidence shows that only a 
few paces separated the two men. 

The combat was then resumed, the deceased advancing upon the accused, and in 
the subsequent interchange of blows the latter struck the deceased's right temple 
with his fist, from which blow the deceased died the following morning. It appears 
from the evidence that at no time during the fight was the accused excited, but, on 
the contrary, appeared calm. He was a considerably larger man than the deceased, 
and evidently felt himself in no particular danger. There was evidence to the effect 
that the deceased's skull over the right temporal region was abnormally thin, also that 
fighting was contrary to the post regulations and the Navy Regulations, although the 
latter might have been taken judicial notice of by the court. 

Manslaughter is unlawful homicide without malice aforethought, either express or 
implied. It is subdivided into voluntary and involuntary manslaughter according 
to whether there was an intention to kill or not. (21 Cyc, 734.) Referring to the 
subject of manslaughter in Clark's Criminal Law (pp. 197, 204) the following state- 
ments are found: 

"73. Manslaughter is unlawful homicide without malice aforethought, and is 
either (c) voluntary or (b) involuntary. 

"Manslaughter is a felony." 

"VOLUNTARY MANSLAUGHTER. 

"75. Voluntary manslaughter is where the act causing death is committed in the 
heat of sudden passion, caused by provocation. 

"(a) The provocation must be such as the law deems adequate to excite uncon- 
trollable passion in the mind of a reasonable man. 

"(b) The act must be committed under and 1 ecause of the passion. 

"(c) The provocation must not be sought or induced as an excuse for killing or 
doing bodily harm. 

"INVOLUNTARY MANSLAUGHTER. 

"76. Involuntary manslaughter is homicide unintentionally caused. 

"(a) In the commission of an unlawful act not amounting to a felony, nor likely 
to endanger life, or 

"(b) By culpable negligence (1) in performing a lawful act, or (2) in performing 
an act required by law." 

The Federal Criminal Code, act of March 4, 1909 (35 Stat., 108S, 1143), contains the 
following pertinent section: 

"Sec. 274. Manslaughter is the unlawful killing of a human being without malice. 
It is of two kinds: 

"First. Voluntary— Upon a sudden quarrel or heat of passion. 

"Second. Involuntary— In the commission of an unlawful act not amounting to a 
felony, or in the commission of a lawful act which might produce death, in an unlawful 
manner, or without due caution and circumspection." 

The latter statute is therefore declaratory of the common law as stated by Clark 
above. An examination of the definitions of manslaughter, as given above, together 
with the evidence in the case, indicates that the act of the accused falls under the head 
of involuntary manslaughter. There is nothing in the record to show that his act 



MANSLAUGHTER. 353 

was committed in the heat of sudden passion, but, on the contrary, that he was 
smiling and cool. 

Excluding "culpable negligence in performing a lawful act, or in performing an 
act required by law," the offense appears to be embraced within the definition that 
"involuntary manslaughter is homicide unintentionally caused in the commission 
of an unlawful act not amounting to a felony nor likely to endanger life." There is 
no evidence that the killing was intentional, and if the encounter was unlawful and 
less than a felony nor likely to endanger life, as the evidence appears to show, the 
definition is satisfied. 

With respect to the form of the specification, it is found that it follows practically 
verbatim , in all its essential features , the indictment for manslaughter as given in Joyce 
on Indictments (pp. 721, 722), including the use of the words "feloniously and will- 
fully." With respect to this form, it was held in People v. Butler (3 Park. Cr. R., 
377, 378), that under said common-law form the accused might be convicted of man- 
slaughter as defined in the New York statutes in any degree, according to the evidence. 
Quoting from the Cyclopedia of Law and Procedure (v. 21, p. 852): 

" Wilfulness and unlawfulness. — It is essential to aver that the killing was unlawful 
either by express allegation or by the use of terms or statements of fact which con- 
clusively imply it. The words 'wilfully' or 'unlawfully' differing in this respect 
from such technical words as 'feloniously' and 'malice aforethought' are usually 
regarded as unnecessary in case their place is supplied by the use of other words. 
So the killing need not be alleged to have been unlawful, where it is charged to have 
been done with ' malice aforethought ' or 'feloniously. ' So also ' wilfully ' is supplied 
by 'feloniously,' or 'malice aforethought,' although it has been held that 'wilfully* 
as well as 'feloniously' must be employed where both words are inserted in the form 
of indictment prescribed by statute or in the statute defining the offense." 

The use of the word "feloniously "is "still necessary in describing a common-law 
felony." (Bouvier, sub voce. Feloniously.) This rule is supported by numerous 
authorities (Words and Phrases Judicially Defined, v. 3, p. 2734), and manslaughter 
is a felonious common-law crime. There is also abundant authority that "felon- 
iously" includes also the sense of "unlawfully." (lb. v. 3, p. 2734.) This is not 
intended to indicate that in the specification of an offense to be tried by a court-martial 
the same technical accuracy is required as in a common-law indictment, for such is 
not the case (1 Op. A. G., 294; 7 Op. A. G., 601; 28 Op. A. G., 286), but if a specification 
is actually framed, as in this case, in conformity with a common-law indictment for 
manslaughter which has received judicial approval, it is a good and sufficient alle- 
gation of the offense charged. 

With regard to the use of the word "wilfully," its signification in the specification 
is "intentionally and not by accident," and is distinguished from "maliciously" 
in not implying an evil mind. (Bouvier, "Wilfully.") Its sense, while different 
under different statutes or contexts, means that the act was done "knowingly," in 
opposition to the sense of doing an act unconsciously or without a knowing mind. 
It does not necessarily imply malice. (Words and Phrases, etc., v. 8, "Wilful," 
etc.) As held in Barr v. Chicago, etc., R. Co. (10 Ind. App. 433): 

"There may be a wilful act in a legal sense without a formed and direct intention, 
and there may be wilfulness where there is no direct or positive intention to inflict 
injury. In other words, there may be a constructive or implied intent." 

The following quotations, supported by authorities, are taken from Cyclopedia of 
Law and Procedure (v. 21, pp. 852. 858, 859): 

Quotation from page 852, supra: 

"858. Manslaughter.— An indictment for manslaughter may, under some statutes, 
be drawn as for murder, omitting the elements of aggravation. Where the manner 
and means of the killing are set out, matter differentiating the degrees need not be 
averred. The absence of apt words characterizing the acts to have been done with 
malice aforethought and the declaration that the crime intended to be charged is 
manslaughter is a sufficient declaration that the homicide was accomplished without 
design to effect death. 

"859. So an indictment for manslaughter may employ the term 'kill and murder' 
instead of 'kill and slay,' as in the statutory form, or the words of the statute may be 
followed without an express averment that the crime charged was manslaughter." 

"Mere words, however abusive or opprobrious, do not amount t o such provocation 
as will preclude the one speaking them from killing in self-defense." (Cyc., v. 21, 
p. 809.) 



354 MANSLAUGHTER. 

"Neither insulting and abusive words or gestures'' of themselves amount to suffi- 
cient provocation for an act of resentment likely to endanger life . (Clark's Crim. Law, 
p. 203.) 

To excuse a homicide on the ground of accident ; the accused must have been engaged 
in a lawful act. (lb., p. 176.) Therefore, as appears to be the case here, the fact that 
the deceased's skull was abnormally thin would not, as a matter of law, excuse the 
offense as an accident if the act in which the accused was engaged was unlawful. 
It is manslaughter to inflict wounds in rude sport that cause death. (Pa. v. Lewis, 
Add. 279.) Bishop in his Criminal Law (v. 2, sec. 704, 3d ed.) says: 

"It appears to be the doctrine of the courts that, if parties become excited bywords, 
and one of them attempts to chastise the other with a weapon not deadly, he will be 
held for manslaughter, though death is unintentionally inflicted." 

As stated in the American Criminal Reports (v. 8, p. 506): 

"Manslaughter is the unlawful and felonious killing of another, without malice, 
either express or implied; and if, therefore, in doing an unlawful act, or in carrying 
out an unlawful design, death happen, but without malice, the offense would be only 
manslaughter, provided such unlawful act or design be not a felony, because then the 
law implies the existence of malice." 

In this case, therefore, there was no express malice and no implied malice, because 
the unlawful act in which the two men were engaged, i. e., the mutual combat, was 
not a felony. 

In cases of mutual combat, to reduce the offense of taking life from murder to man- 
slaughter, it must appear that the contest was waged on equal terms and no undue 
advantage was taken. (People v. Sanchez, 24 Cal., 17.) " Prize fighting and boxing 
matches are unlawful; and if death ensues it is manslaughter. Where a man was 
challenged to fight, for a public trial of skill in boxing, and was even urged to it by 
taunts, and he fought and killed his adversary, this was holden to be manslaughter, 
although the occasion was sudden." (Archbold's Crim. Pr. & PL, v. 1, p. 829.) 

There is no question as to the fact that legally an assault was committed by the 
accused upon the deceased, and that he struck him the blow which caused his 
death, constituting a technical battery as well as an actual one. As stated in the 
Cyclopedia of Law and Procedure (v. 21, pp. 762, 763): 

"In accordance with the rule that it is manslaughter to unintentionally kill another 
in doing an unlawful act, it is well settled that if one commits an assault and battery 
upon another not likely to cause death, and death unintentionally results either to the 
person assaulted or to a bystander, it is manslaughter. * * * 

"The same is true, according to some of the cases, of an unintentional homicide 
committed while engaged in a riot or unlawful assembly; and it is true of an uninten- 
tional homicide in an affray or unlawful fighting, including prize fighting, where such 
fight is unlawful, or in any unlawful game or sport." 

As stated in the Law of Crimes (Clark & Marshall, v. 1, p. 443): 

" Fighting, and breaches of the peace. — By the decided weight of authority, a person 
can not consent to a breach of the peace or to a beating which may result in serious 
injury. And it has been held, therefore, both in England and in this country, that 
if a person engage in a fight by agreement, whether a prize fight or not, their consent 
does not prevent each from being guilty of an assault and battery upon the other." 

The same authors, with respect to offenses against the public peace, say (ib., v. 2, 
pp. 984, 985): 

"In addition to these specific offenses, it may be laid down as a general rule that 
any other act which constitues a breach of the public peace, or which has a direct 
tendency to cause a breach of the public peace, is a misdemeanor at common law. 

"It is not necessary that there shall be actual force or violence to constitute an 
indictable offense. Acts injurious to private persons, which tend to excite violent 
resentment, and thus produce fighting and disturbance of the peace of society, are 
themselves indictable. " 

But aside from the unlawfulness of fighting, as above shown, the Articles for the 
Government of the Navy provide (art. 8, cl. 3), as follows: 

"Art. 8. Such punishment as a court-martial may adjudge may be inflicted on any 
person in the Navy— who * * * 

"(3) * * * quarrels with, strikes, or assaults, or uses provoking or reproachful 
words, gestures, or menaces toward any person in the Navy; * * *" 

Section 1621, Revised Statutes, provides that the Marine Corps shall be subject to 
the foregoing provision, among others, as follows: 



MANSLAUGHTER. 355 

" Sec. 1621. The Marine Corps shall, at all times, be subject to the laws and regula- 
tions established for the government of the Navy, except when detached for service 
with the Army by order of the President; * * *" 

And, furthermore, fighting was against the post regulations at the marine barracks 
where this offense was committed. So that whether the combat be regarded as malum 
'prohibitum, or malum in se, with respect to which a distinction is sometimes made by 
the courts, the fighting between the accused and the deceased was unlawful. This 
being so, the offense was proved, and it will now be necessary to give consideration 
to certain matters of defense. 

Apparently there is an effort to show that the accused acted in self-defense, and that 
in his fight with the deceased he struck the deceased on the skull, the bones of which 
were abnormally thin. As to this, Bishop, in his Criminal Law (3d ed., v. 2, sec. 651), 
says: 

"If improper force is used for defense, even where force is permissible, he who 
employs this improper force must answer as for a felonious homicide should death 
accidently follow . " 

Also (ib., sec. 652): 

"It is well known that where one assaults another, or engages with another in a 
mutual combat, if the party struck by a blow dies, though death were not intended, the 
person giving the blow is guilty of either murder or manslughter. " 

The evidence in this case shows that the two participants in the fight, after the 
combat had progressed for a time during which the deceased received a blow on the 
nose, resumed fighting. While it is proved that the accused then asked the deceased 
if he had enough, yet he did not retreat, but evidently stood his ground waitmg for 
the deceased to resume the encounter. He did not retreat nor did he plainly and 
bona fide indicate to the deceased that he intended to withdraw from any further 
participation in the affray. He did none of these things, but stood there waiting, 
and when the deceased again advanced to the fight he engaged in. the final round, 
which resulted in the blow that caused the deceased's death. 

In the Law of Crimes (Clark and Marshall, v. 1, p. 620) it is said: 

"One who commits an assault without malice, or otherwise provokes a difficulty 
without malice, and thereby brings on a conflict, may withdraw from the conflict 
and if he does so in good faith, and in such an unequivocal manner as to show his 
adversary that he desires to withdraw and his adversary follows him and attempts 
to kill him or do him great bodily harm, he has the same right of self-defense as 
if he had not originally been the aggressor. If, however, he does not withdraw, or 
offer to withdraw, he can not successfully plead self-defense, but will be guilty of 
manslaughter at least. " 

In Wallace v. United States (162 U. S., 466, 472) the court's opinion contained the 
following as to the right of self-defense in doing an unlawful act, quoting approv- 
ingly from Reed v. State (11 Tex. App., 509): 

"It may be divided into two general classes, to wit, perfect and imperfect right of 
self-defense. A perfect right of self-defense can only obtain and avail where the party 
pleading it acted from necessity and was wholly free from wrong or blame in occasion- 
ing or producing the necessity which required his action. If, however, he was in the 
wrong— if he was himself violating or in the act of violating the law— and on account 
of his own wrong was placed in a situation wherein it became necessary for him to 
defend himself against an attack made upon himself, which was superinduced or 
created by his own wrong, then the law justly limits his right of self-defense and 
regulates it according to the magnitude of his own wrong. Such a state of case may 
be said to illustrate and determine what in law would be denominated the imperfect 
right of self-defense. Whenever a party by his own wrongful act produces a condition 
of things wherein it becomes necessary for his own safety that he shall take life or do 
serious bodily harm, then indeed the law wisely imputes to him his own wrong and 
its consequences, to the extent that they may and should be considered in determining 
the grade of offense, which but for such acts would never have been occasioned. 
* * * How far and to what extent he will be excused or excusable in law must 
depend upon the nature and character of the act he was committing and which pro- 
duced the necessity that he should defend himself. When his own original act was 
in violation of law, then the law takes that fact, into consideration in limiting his 
right of defense and resistance whilst in the perpetrat ion of such unlawful act . If he 
was engaged in the commission of a felony, and, to prevent its commission the party 
seeing it or about to be injured thereby niakes a violent assault upon him. calculated 
to produce death or seriously bodily harm, and in resisting such attack he slays his 



356 MANSLAUGHTER. 

assailant, the law would impute the original wrong to the homicide and make it 
murder. But if the original wrong was or would have been a misdemeanor, then the 
homicide growing out of or occasioned by it, though in self-defense from any assault 
made upon him would be manslaughter under the law." 

In Allen v. United States (164 U. S., 497, 498) the court say: 

"It is well settled by the authorities that mere words, however aggravating, are 
not sufficient to reduce the crime from murder to manslaughter. 

"It is clear that to establish a case of justifiable homicide it must appear that some- 
thing more than an ordinary assault was made upon the prisoner; it must also appear 
that the assault was such as would lead a reasonable person to believe that his life 
was in peril." 

It does not appear from the evidence that the accused considered his life was in 
peril, but instead he was a much larger man than the deceased, and was smiling and 
cool. He was not pursued by the deceased, nor did he endeavor to retreat as far as 
he could. 

The following remarks are taken from Archbold's Criminal Practice and Pleading 
(7th Ed., v. 1, pp. 794-796): 

"And the true criterion between them is stated to be this: When both parties are 
actually combating at the time the mortal stroke is given, the slayer is guilty of man- 
slaughter; but if the slayer has not begun to fight or (having begun) endeavors to de- 
cline any further struggle and afterwards, being closely pressed by his antagonist, 
kills him to avoid his own destruction, this is homicide excusable by self-defense. 
(4 Bla. Com., 184.) 

"In all cases of homicide excusable by self-defense it must be taken that the attack 
was made upon a sudden occasion and not premeditated or with malice; and from the 
doctrine which has been above laid down it appears that the law requires that the 
person who kills another in his own defense should have retreated as far as he con- 
veniently or safely could, to avoid the violence of the assault, before he turned upon his 
assailant ( Pierson v. State, 12 Ala. , 149), and that not fictitiously or in order to watch his 
opportunity, but from areal tenderness of shedding his brother's blood. For in no case 
will a retreat avail if it be feigned, in order to get an opportunitv or interval to enable 
the party to renew the fight with advantage. (1 Hale, 481, 483; Fost., 277; 4 Bla. 
Com., 185.) The party assaulted must, therefore, flee, as far as he conveniently can; 
either by reason of some wall, ditch, or other impediment, or as far as the fierceness 
of the assault will permit him, for it may be so fierce as not to allow him to yield a step 
without manifest danger of his life or great bodily harm, and then in his defense he 
may kill his assailant instantly. (1 Hale, 483; 4 Bla. Com., 185.) * * * 

"In order, however, to justify a killing on the ground of necessity, the person com- 
mitting the act must be without fault in bringing about that necessity. (Viaden v. Com., 
12 Gratt., 717; Havnes v. The State, 17 Geo., 465.) 

****** 

"With regard to the nature of the necessity, it may be observed that the party 
killing can not, in any case, substantiate his excuse if he kill his adversary even after 
a retreat unless there were reasonable ground to apprehend that he would otherwise 
have been killed himself. (Fost., 273, 275, 289; 4 Bla. Com., 184.) 

"All writers concur in the language of Blackstone (3 Blk. Com., 4) that to warrant 
its exertion at all the defender must be forcibly assaulted. He may then repel force 
by force, because he can not say to what length of rapine or cruelty the outrage may 
be carried unless it were admissible to oppose one violence with another. But care 
must be taken that the resistance does not exceed the bounds of mere defense and 
prevention, for then the defender would himself become the aggressor. (See People 
v. McLeod, 1 Hill N. Y. Rep., 377; U. S. v. Vigol, 2 Dallas Rep., 346; Com. v. Crauss, 
3 Am. L. J., 299.)" 

The following from the Cyclopedia of Law and Procedure (v. 21, p. 812), is also 
pertinent: 

" Voluntary participation in contest or mutual combat. — Where a person voluntarily 
participates in a contest or mutual combat for purposes other than protection, he can 
not justify or excuse the killing of his adversary in the course of such conflict on the 
ground of self-defense unless before the homicide is committed he withdraws and en- 
deavors in good faith to decline further conflict even though retreating would in- 
crease his peril." 

Likewise the following (lb., p. 811): 

"Necessity of withdrawal and notice.— The aggressor's mere willingness or intent to 
withdraw is not sufficient; he must both endeavor to really and in good faith withdraw 



MANSLAUGHTER. 357 

from the combat and must also in some manner make known his intention to his 
adversary." 

So also the following (lb., p. 813): 

"Imminence of danger. — (1) In general. — The danger must also be either actual, 
present, and urgent, or such as the slayer believes on reasonable grounds to be so 
urgent and pressing that it is necessary for him to kill in order to save himself from 
immediate death or great bodily harm and that there is no other reasonable means of 
escape." 

The following also has an important bearing on the case, as showing the futility 
of se defendendo under the circumstances of this case (lb., p. 826): 

"Renewal of contest.— Where after the original difficulty has ceased or defendant 
has an opportunity of declining further combat and he instead continues the struggle 
or renews the combat, he becomes the aggressor, irrespective of whether he was at 
fault in bringing on the original difficulty and is not justified or excused in killing in 
self-defense." 

In Bishop on Criminal Law, pages 346-7, it is stated: 

"Lord Hale says: 'Regularly it is necessary that the person that kills another in 
his own defense fly as far as he may to avoid the violence of the assault, before he 
turns upon his assailant; for though in cases of hostility between two nations it is 
reproach and piece of cowardice to fly from an enemy, yet, in cases of assaults and 
affrays between subjects under the same law, the law owns not any such point of 
honor, because the king and his laws are to be the vindices injuriarum, and private 
persons are not trusted to take capital revenge one of another.' But he goes on to 
show that this doctrine can not apply where flight is impossible; and, indeed, he 
explains, as do all the old writers on this branch of our law, that the right to take the 
assailant's life is only to be exercised when no other means of escape are open. The 
proposition is admirably laid down in a New York case that, when a man expects to 
be attacked, the right of self-defense does not arise until he has done everything to 
avoid the necessity of using it; and this proposition seems clearly to apply to all cir- 
cumstances of the nature of those now under consideration. One must not have 
brought on himself the necessity which he sets up in his own defense. 

" Sec. 565, 649. There is another class of circumstances to which the doctrine of the 
last section is more frequently applied. Two or more persons, engage in a mutual 
combat, without any original intent to proceed to extreme measures; or, after an as- 
sailant has been met by his adversary, he becomes weary of a conflict which is likely 
to be more serious than he anticipated, or too much for him to withstand; and here, 
if one of the combatants, already in the wrong, either as a beginner or continuer of 
the fight, wishes to retrace his error, he must retreat. And though, contrary to his 
original expectation, he finds himself so hotly pressed as renders the killing of the 
other necessary to save his own life, he is guilty of a felonious homicide if he kills him, 
unless he first actually puts into exercise this duty of withdrawing from the place. Lord 
Hale expressly states the following case: ' If A assaults B first, and upon that assault 
B reassaults A, and that so fiercely that A can not retreat to the wall or other non ultra, 
without danger of his life; nay, though A fall upon the ground upon the assault of B, 
and then kills B; this shall not be interpreted to be se defendendo, but to be murder, 
or simple homicide, according to the circumstances of the case; for otherwise we 
should have all cases of murders or manslaughters by way of interpretation turned 
into se defendendo.'" 

As stated in State v. Spears (9 Am. Cr. Rep., 624): 

"If the defendant acts from fear of death and great bodily harm, and kills another, 
he must be free from fault in bringing on the difficulty. (Kerr, Horn. , 201. ) In cases 
of mutual combat both parties are the aggressors, and if one is killed it will be man- 
slaughter, at least, unless the survivor can prove that before the mortal stroke was 
given he had refused any further combat, and retreated as far as he could with safety, and 
that he killed his adversary from necessity to avoid his own destruction or great bodily harm 
to him." 

The foregoing is supported by the authoritv of the decisions of many eminent 
courts. And again, in Dolan v. State (6 Cr. Rep., 524), it was held that— 

"Where parties fight and separate, and afterwards meet, and one slays the other 
he is guilty of criminal homicide if he could, at any time from the beginning of the 
first to the end of the second difficulty, have reasonably withdrawn from or avoided 
the difficulty without immediate danger to himself, and' he can not set up self-defouso 
until he has done everything reasonable in his power to prevent, abandon, arid decline 
any further contest with his adversary." 



358 MANSLAUGHTER. 

There is no evidence in this case to show that the accused was in "fear of death or 
great bodily harm," and there is evidence that he, in fact, brought on the difficulty. 
He did not refuse further combat before the mortal blow was given, abandon, and 
decline further fighting. He did not retreat as far as he could with safety, and it is 
not shown that he struck the deceased the fatal blow to avoid his own destruction. 

In view of all the foregoing considerations, and quotations from authorities, it ap- 
pears that the specification should have been found proved and the accused of the 
charge guilty. 

However, should the court still believe nevertheless that the specification in its 
present form is not fully proved and that the accused is not guilty of the charge of 
manslaughter, yet it still possesses ample authority to find the specification proved 
in part and the accused guilty in a less degree than charged, as of "Conduct to the 
prejudice of good order and discipline," and to adjudge a sentence commensurate as 
the facts warrant. 

The court revoked its former finding and substituted therefor the finding of guilty 
of involuntary manslaughter. C. M. O. 23, 1911, 2-12. 

MANUAL. FOB GOVERNMENT OF NAVAL PRISONS, PRISON SHIPS, AND 
DISCIPLINARY BARRACKS. C. M. O. 49, 1915, 21. 

MANUAL FOR THE MEDICAL DEPARTMENT. 

1. Regulations— Full force and effect of. C. M. O. 12, 1915, 11. 

MANUAL GOVERNING THE TRANSPORTATION OF ENLISTED MEN. 

1. Regulations— Full force and effect of. C. M. O. 12, 1915, 11. 

MANUAL LABOR. 

1. Officers— Ordered to perform. See Orders, 41. 

MANUAL OF INTERIOR GUARD DUTY, U. S. ARMY, 1914. 

1. Judicial notice. See Judicial Notice, 6. 

31ARLNE BAND. See Bands, 1-3. 

MARINE BRIGADES. See Convening Authority, 27; Courts of Inquiry, 10; Marine 
Corps, 10. 

MARINE CORPS. 

1. Absence, unauthorized— Making good time lost by. See Marine Corps, 30. 

2. Appeal to department— By officer to be given a higher place on the Navy list. See 

Marine Corps, 65, 73. 

3. Applicants for enlistment — Prosecution of. See Applicants for Enlistment, 2; 

Enlistments, 18; Marine Corps, 29. 

4. Appointments to second lieutenant — May be made from civil life. See Appoint- 

ments, 20. 

' ' The law does not contemplate the issuance of probationary appointments to former 
officers of the Marine Corps reinstated as second lieutenants." File 13261-544:1, 
J. A. G., Oct. 10. 1916. See also Marine Corps, 71. 

In the cases oi reinstatement of former officers as second lieutenants, under the act 
of August 29, 1916, boards may be instructed that the professional records of such 
candidates may be accepted as evidence of the candidates' professional qualifications, 
provided that the records are such as to indicate that the candidates in question are 
properly professionally qualified to perform the duties of the grade to which they 
seek appointment. File 26521-151. Sec. Navy, Sept. 9, 1916. 

5. Same— From enlisted men. See Appointments, 22. 

6. Army— Marine serving with Army committed offense and tried by naval court-martial. 

See Marines Serving with Army, 7. 

7. Same — Marines serving with. See Marines Serving with Army. 

8. Army Transport— Status of Marines on. See Army, 7. 

9. Brigade— Marine Brigade, P. I. See Jurisdiction, 77. 

10 — Same — Convening of general courts-martial and courts of inquiry by Brigade Com- 
manders. See Convening Authority, 27; Courts of Inquiry, 10. 

11. Brigadier General— Grade of, established by Act, Aug. 29, 1916 (39 Stat. 609.) See 

File 26521-148, J. A. G., Aug. 18, 1916; 26521-148; 28687-7. 

12. Bureau— The Marine Corps is not one of the bureaus of the Navy Department. It 

is a part of the Naval Establishment, but it is not a part of the Navy Department as 
established at the seat of the Government: it is under the supervision of an executive 



MARINE CORPS. 359 

f department, but that relation to the department is not the same as a part of it. (11 
Comp. Dec. 558. See also 28 Op. Atty. Gen. 487) File 4600, Apr. 10, 1906; 21686, 
Apr. 11, 1906; 6770-12, J. A. G., May 8, 1912. 

13. Campaign Badges— Revocation of by Major General Commandant. See China 

Campaign Badges, 1. 

14. Clerks— The employment of enlisted men of the Marine Corps on clerical duty at 

Headquarters, Marine Corps, is permitted by law. File 4600, Apr. 10, 1906; 21686, 
Apr. 11, 1906. 

15. Clerks to Assistant Paymasters. See Paymaster's Clerks, Marine Corps. 

16. Command — Authority of a Marine officer commanding a battalion afloat. See 

Jurisdiction, 75, 76. 

17. Same— Naval station. See Jurisdiction, 86. 

18. Commandant. See Marine Corps, 47-50. 

19. Commissions — Change of date of retired officers' commissions requested. See 

Commissions, 17. 

20. Same— Date of. See Commissions, 14, 17, 18. 

21. Courts of Inquiry— Convened by B rigade Commanders . See Convening Authority, 

27; Courts of Inquiry, 10; Marine Corps, 10. 

22. Court-Martial Orders — Indorsement of Major General Commandant published in. 

C. M. O. 24, 1914, 24; 14, 1915, 2; 19, 1915, 2. See also C. M. O. 31, 1915, 7. 

23. Death Gratuity. See Death Gratuity, 21, 22. 

24. Deposits. See Deposits, 3; Marine Corps, 88. 

25. Desertion — As a branch of the United States naval service, marines are subject 

to the same laws regarding desertion as enlisted men of the other branches of the 
service. File 5621-4, Sec. Navy, Apr. 10, 1907. 
26c Detentioners— Clothing allowances for. File 28267-126, J. A. G., Mar. 30, 1912. See 
also Detentioners, 2. 

27. Enlisted men— Strength of Marine Corps. -Sec Marine Corps, 100-102. 

28. Same — May legally be employed on clerical duty at Headquarters. See Marine 

Corps, 14. 

29. Enlistments, applicants for— Fraudulently receiving transnortation. See File 

7657-180 and 180:1, Sec. Nav., June 4, 1913. See also Applicants for Enlistment, 2; 
Enlistments, 18. 

30. Enlistment in— Making good time lost by unauthorized absence— The Comptroller 

of the Treasury has held that the act of May 11, 1908 (35 Stat. 109) stating that an 
enlistment in the Army shall not be regarded as complete until the soldier shall have 
made good time lost during an enlistment period by unauthorized absences exceeding 
one day, applies to the Marine Corps. 

But a man who enlisted prior to the passage of the above act and who is, by absence, 
not regarded as a deserter, can not be held in service to make good the time lost by 
unauthorized absence. He may, however, be tried for the offense. File 26287-458, 
J. A. G., July 2, 1910, p. 2. See also Enlistments, 11. 

31. Examining Boards. See Marine Examining Boards; Promotion. 

32. Extension of enlistments. See Extension of Enlistments; Marine Corps. 96. 

33. "Field duties"— The paramount duties of the Marine Corps are "field duties." 

File 28687-14, J. A. G., Dec. 14, 1916, p. 3. 

34. Floating battalion— Jurisdiction. See Jurisdiction, 75, 76. 

35. General courts-martial— Convening of by brigade commanders. See Convening 

Authority , 27. 

36. General officers— Number authorized by Act, Aug. 29, 1916 (39 Stat., 609). File 

28687-1. 

37. Good conduct medals— Extension of enlistments. File 3980-1255. See also Good 

Conduct Medals. 

38. Grades, overfilling of. See Marine Corps, 66. 

39. Guard duty. See Manslaughter, 9. 

40. Headquarters— Status of. See Marine Corps. 12. 

41. Increase of officers— May not be obtained by implication. See Statutory Con- 

struction and interpretation, 47. 

42. Jurisdiction— By Army summary court over Marines traveling on Array transports. 

See Army, 7. 

43. Same— Marines serving with Army. See Marines Serving with Army. 

44. Same — Marine battalion afloat. See Jurisdiction, 75, 76. 

45. Same— Marines on naval transports. See Jurisdiction, 75, 76. 

46. Mail clerks, Navy— Detail of from Marine Corps. File 26254-1961, J. A. G., Fob. 12. 

1916. See also Mail Clerks. 



360 MARINE CORPS. 

47. Major General Commandant— The retirement of a Commandant of the Marine 

Corps creates a vacancy in that office which can be filled only by appointment of an 
officer of the Marine Corps on the active list, by and with the advice and consent of 
the Senate, or under an ad interim commission. A retired officer cannot be detailed 
to perform the duties nor can an officer on the active list be detailed to temporarily 
perform the duties of commandant, but can sign orders and correspondence "In- 
direction of the Secretary oi the Navy." 15 J. A. G. 25, Nov. 15, 1910. See also File 
27231-23:1; Op. Atty. Gen., Nov. 30, 1910; Marine Corps, 50. 

48. Same — As the tenure of office of the Commandant of the Marine Corps terminates 

upon retirement of the incumbent (Act July 1, 1902, 32 Stat. 686) that officer could 
not be ordered to active duty as Commandant after he is retired, since the office can 
only be filled by the appointment of an officer on the active list. (Act May 13, 190S, 
35 Stat. 155). 

No provision is made by law for the temporary appointment of a Commandant of 
the Marine Corps. 

But the office could remain vacant until the President was ready to appoint an 
eligible officer therefor, by and with the advice and consent of the Senate. 15 J. A. 
G. 28, Dec. 1, 1910". See also Marine Corps, 50. 

49. Same— The Act of Dec. 19, 1913 (38 Stat., 241) designates the officer holdins; the office 

of Commandant of the Marine Corps as "Commandant of the Marine Corps;" (File 
3980-1075, J. A. G., Apr. 5, 1915) but the Act of Aug. 29, 1916 (39 Stat., 609) desig- 
nates him as "Major General Commandant." 

The proper designation of the Major General Commandant in official correspondence 
is "The Major General Commandant, Marine Corps." File 20400-68, Sec. Navy 
Sept. 6, 1916. See also Designations. 

50. Same — Act of Dec. 19, 1913 (38 Stat., 241) provides that when a vacancy shall exist 

in the position of Commandant of the Marine Corps the President may appoint to 
such position, by and with the advice of the Senate, an officer of the Marine Corps 
on the active list not below the grade of field officer, who shall hold office as such 
Commandant for a term of four years, unless sooner relieved, and who, while so serving 
shall have the rank, pay, and allowances of a major general in the Army; and any officer 
appointed under the provisions of this Act who shall be retired from the position of 
Commandant of the Marine Corps, in accordance with the provisions of sections 
1251, 1622, and 1623, Revised Statutes of the United States, or by reason of age or 
length of service, shall have the rank and retired pay of a major general; if retired for 
any other reason, he shall be placed on the retired list of officers of the grade to which 
he belonged at the time of his retirement: Provided, That an officer serving as Com- 
mandant shall be carried as an additional number in his grade while so serving, and 
after his return to duty in his grade until said grade is reduced to the number author- 
ized by law: Provided further, That nothing herein contained shall operate to increase 
or reduce the total number of officers in the Marine Corps now provided by law. 
See File 26255-300, J. A. G., Dec. 22, 1913. The Act of Aug. 29, 1916 (39 Stat. 609) 
amends the above law by providing that appointments hereatter made to the position 
of Major General Commandant under the provisions of the Act of Dec. 19, 1913 (3S 
Stat. 241) shall be made from officers of the active list of the Marine Corps not 
below the rank of colonel. See File 26521-148, J. A. G., Aug. 18, 1916; 26521-148; for 
promotion of officer while detailed as Major General Commandant, see Promo- 
tion, 83. 

51. Marine examining boards. See Marine Examining Boards. 

52. Marines serving with Army. See Marines Serving with Army. 

53. ** Marine summary court-martial "—There is no tribunal known to the law as a 

marine court-martial. Circular Sec. Navy- July 5, 1877. See also Court, 114. 

54. Midshipmen— Appointment of midshipmen to Marine Corps as second lieutenants. 

File 13261-486, Sec. Navy, June 8, 1916. See also the Act of August 29, 1916 (39 Stat. 
611) which provides that no midshipman at the United States Naval Academy or 
cadet at the United States Military Academy who fails to graduate therefrom shall 
be eligible for appointment as a commissioned officer in the Marine Corps until after 
the graduation of the class of which he was a member. See also Midshipmen, 43, 83. 

55. Same— Enlisted men of the Marine Corps may be appointed. See Marine Corps, 88; 

Midshipmen, 52. 

56. Mounted marine officers. See Allowances. 12. 

57. Naval Academy— Enlisted men of the Marine Corps may be appointed to. See 

Marine Corps, 88; Midshipmen, 52. 

58. Same— The Act of July 9, 1913 (38 Stat. 103) "makes the Naval Academy in effect a 

training school for the Marine Corps as fully as for the Navy proper." File 5252-66, 
J. A. G., May 12, 1915. 



MARINE CORPS. 361 

59. Naval Reserve — Service in Marine Corps may be included in. See Naval Reserve, 1. 

60. Officers— Midshipmen eligible as. See Midshipmen, 53, 55, 66. 

61. Same — Appointments may be made from civil life. See Appointments, 20. 

62. Same — Enlisted men of the Navy, as well as noncommissioned officers, may be ap- 

pointed as second lieutenants. See Appointments, 22. 

63. Same — Rank and precedence. See Precedence, 14-18. 

64. Same — Resigned midshipman's status. See Marine Corps, 54. 

65. Same— Request rearrangement of positions on Navy list. See File 6817-02; 11130-34, 

Sept. 2, 1916. See also File 1957-03, Sec. Navy, Feb. 27, 1903; 8171-03, J. A. G., Oct. 
13, 1903; 7151-03, J. A. G., 1903; Marine Corps, 73; Commissions, 14-18. 

66. Overfilling grades— The Secretary of the Navy declined to recommend the appoint- 

ment of an additional second lieutenant in the Marine Corps while said grade con- 
tained the full number allowed by law, although informed by the Major General 
Commandant, Dec. 20, 1913 (File 372), that the resignation of a first lieutenant had 
been accepted to take effect Jan. 1, 1914, which would cause a vacancy "in the 
commissioned personnel of the Marine Corps; " at the same time the Major General 
Commandant was directed to present the matter again to the department "when a 
vacancy occurs in the grade of second lieutenant." File 13261-486, Sec. Navy, June 3, 
1916, quoting File 942-310, Bu. Nav., Sec. Navy, Dec. 29, 1913, with approval.) From 
the above it will be seen that where the number of officers allowed in a given grade, 
as in the case of a second lieutenant, is fixed by law, this is a provision of statute 
which is binding upon the department, and not a rule of the department which may 
be waived. Accordingly the department is without power to authorize the ap- 
pointment of officers in the grade of second lieutenant in excess of the number fixed 
by law, even though the result would over-fill said grade "at most only for a period 
of a few days." File 13261-486, Sec. Navy, June 8, 1916. See also Promotion, 109. 

67. Pay clerks. See Paymasters' Clerks, Marine Corps. 

68. Porto Rico— A citizen of Porto Rico is not eligible for appointment as a second lieuten- 

ant in the Marine Corps. File 6730-04. See also Downes v. Bidwell, 182 U. S. 24 4; 
Citizenship, 31; Porto Rico, 4. 

69. Precedence— When Marines are landed with bluejackets. See Marine Corps, 81. 

Precedence between officers of Navy and Marine Corps. See Precedence, 16-18. 

70. "Primary" relation— Finally settled to be with Navy. See Marines Serving with 

Army, 7. 

71. Probationary second lieutenants— The law (act of Aug. 29, 1916, 39 Stat. 610) does 

not contemplate the issuance of probationary appointments to former officers of the 
Marine Corps reinstated as second lieutenants, after successfully passing the required 
examinations, and the purpose of Congress to this effect is manifested by the differ- 
ence in the nature of the examinations prescribed for former officers as compared 
with those of original appointees. File 13261-544:1, J. A. G., Oct. 10, 1916. See 
Stirling v. U. S. (48 Ct. Cls., 386) as to difference between "original appointment" 
and ' • reinstatement ." 

The second lieutenants in question will undoubtedly be commissioned officers in 
the Marine Corps, the same as any other second lieutenant in said corps, with the 
exception that they must serve the probationary period mentioned in the law, and 
the Secretary of the Navy is authorized to revo'ke their appointments at any time 
during said probationary period. The Secretary of the Navy is the administrative 
officer specifically designated in the law as the authority by whom the appointments 
may be revoked. File 26521-152, J. A. G., Sept. 22, 1916. 

These second lieutenants are, when appointed, to be commissioned officers in the 
Marine Corps; the Secretary of the Navy may legally sign their commissions; but 
"it is proper" that the commissions should declare the act to be the act of the 
President performed by the Secretary of the Navy as his representative; it would also 
appear proper that the commissions further declare that thev are for the probationary 
period of two years. File 26521-152, J. A. G., Sept. 22, 1916. 

72. Promotion of officers. See Promotion. 

73. Rearrangement of officers appointed from civil life— "No rearrangement will be 

made of the officers heretofore appointed to the Marine Corps from civil life." (File 
1957-03, Sec. Navy, Feb. 27, 1903. See also File 7794-02; Marine Corps file 4043-1902; 
6817-02; 1957-03.) File 11130-34, Sec. Navy, Sept. 20, 1916. See aim Commissions. 
14-18; Marine Corps, 65; File 11130-35, Sec. Navy, Dec. 20, 1916. 

74. Recruiting— Comments upon proposed change in system of recruiting. File 7657-94 

Sec. Navy, Dec. 31, 1910; 7657-103, J. A. G., Apr. 25, 1911; 7657-103:1. J. A. G., June 
23, 1911; 7657-103:2, J. A. G., July 18, 1911. 

75. Recruiting officer— Tried by general court-martial. C. M. O. 19, 1915. 



362 MARINE CORPS. 

76. Reserve. See Marine Coeps, 88; Marine Coeps Reseeve, 1, 2. 

77. Retired officers— Active duty. See Marine Coeps, 91; Retired Officers, 1, 2, 45. 

78. Same— Request to change date of commission. See Commissions, 17. 

79. Retirement of officers. See Retirement of Officees, 35, 36. 

80. Retiring Boards. See Marine Retieing Boards. 

81. Right of line— " When companies of seamen and marines are united for battalion drill, 

or infantry service afloat or ashore, the marine company will take the right of the line. 
"The companies of seamen shall be formed in the order of rank of the company 
officers according to the authorized tactics." Circular, Sec. Navy, Aug. 9, 1876. 

82. Senior officer present — Action on records of summary courts-martial. See Senior 

Officer Present; Summary Courts-Martial, 22, 38. 

83. Sentences of officers— Approved by the Secretary of the Navy in accordance with 

the recommendation of the Major General Commandant. C. M. O. 24, 1914, 24; 
14 1915 2' 19 1915 2. 

84. Ships— Removal of Marines from. See File 27109, Nov. 6, 1908; 27 Op. Atty. Gen. 

259; Regulations, Navy, 3. 

85. Staff officers— Officers of the staff departments of the Marine Corps are not, either 

from the inherent nature of their duties, nor by training, presumably qualified to 
pass an examination " confined to problems involving the higher functions of staff 
duties and command." File 26521-144:1, Sec. Navy, July 10, 1916, p. 4. See also 
Promotion, 180, 181. 

86. Status of— In Wilkes v. Dinsman (7 How. 8S) in 1849 it was decided that marines were 

included in the denomination of "persons enlisted for the Navy," as used in the 
act of March 2, 1837, now embodied in section 1422 of the Revised Statutes, and amend- 
ments thereto, concerning the detention of enlisted men after expiration of enlist- 
ment, or their reenlistment abroad to serve until their return to the United States. 
In its opinion the Supreme Court said: 

"This new law, to be sure, speaks in its title of the 'enlistment of seamen;' but in 
the body of it provision is made as to the 'service of any person enlisted for the Navy ' 
* * * though marines are not, in some senses, 'seamen,' and their duties are in 
some respects different, yet they are, while employed on board public vessels, persons 
in the naval service, persons subject to the orders of naval officers, persons under the 
government of the naval code as to punishment, and persons amenable to the Navy 
Department. Their very name of 'marines' indicates the place and nature of their 
duties generally. And, beside the analogies of their duties in other countries, their 
first creation here to serve on board ships expressly declared them to be a part 'of 
the crew of each of said ships.'" File 26280-61, Sec. Naw, July 10, 1915; 5252-66, 
J. A. G., May 13, 1915; 26521-148, J. A. G., Aug. 29, 1916, p. 2. 

It was decided by the Supreme Court in IT. S. v. Dunn (120 U. S. 252) in 1887 
that service as an enlisted man of the Marine Corps was service as an enlisted man ol 
the Navy within the meaning of the law then under consideration, the court stating 
in its opinion: 

"It must be conceded that the Marine Corps, a military body in the regular service 
of the United States, occupies something of an anomalous position, and is often spoken 
of in statutes which enumerate 'the Army, the Navy and the Marine Corps,' or 
' the Army and the Marine Corps, ' or 'the Navy and the Marine Corps/ in a manner 
calculated and intended to point out that it is not identical wito either the Army or 
the Navy. And this argument is the one very much pressed to show that service 
in the Marine Corps is noi service in the Army or in the Navy. On the other hand, 
the services rendered by that corps are always of a military character, and are rendered 
as a part of the duties to be performed by either the Army or the Navy. * * * 

"It seems to us that these provisions of the Revised Statutes, bringing together 
the enactments of Congress on the subject of the Marine Corps, show that the primary 
position of that body in the military service is that of a part of the Navy, and its chief 
control is placed under the Secretary of the Navy, there being exceptions, when it 
may, by order of the President, or some one having proper authority, be placed more 
immediatelv, for temporary duty, with the Army and under the command of the 
superior army officers." File 26280-61, Sec. Navy, July 10, 1915; 5252-66, J. A. G„ 
May 13, 1915, 26521-148, J. A. G., Aug. 29, 1916, p. 2. 

87. Same— The law embodied in section 1621 of the Revised Statutes was cited by the 

Supreme Court in the case of Wilkes v. Dinsman (7 How. 88) as an additional reason 
for holding that enlisted men of the Marine Corps might be employed on active duty 
after expiration of enlistment under laws relating to enlisted meii of the Navy. In 
its opinion the court expressly stated that "the term 'the better government of the 



MARINE CORPS. 363 

Navy,'" as used in the law as it then read, "need not be restricted to mere punish- 
ment, or to courts-martial." 

In the case of U. S. v. Dunn (120 TJ. S. 252), the Supreme Court, in discussing its 
former opinion in the "Wilkes case, stated with reference to that opinion: "And re- 
ferring to the act of June 30, 1834, the provision of which is found in section 1621 of 
the Revised Statutes, * * * the opinion says that this strengthens the conclusion 
of the court, and that the corps thus in some respects became still more closely identi- 
fied with the Navy." 

Referring to the Dunn case, the Attorney General stated in an opinion to the Secre- 
tary of War: "The Supreme Court thus states what Revised Statutes, section 1621, 
makes altogether clear, that the Marine Corps is a part of the Naval Establishment 
and is subject to the laws and regulations for the government of the Navy, save in 
the single case when it has been 'detached for service with the Army by order of the 
President. ' * * * The statute leaves no room for doubt. The "Marine Corps is 
stated to be 'at all times' subject to the laws and regulations established for the 
government of the Navy, except when detached for service with the Army by order 
of the President. Nothing but such order by the President, or by his authority, can 
alter the ordinary connection of the Marine Corps with the Navy and connect that 
corps with the Army." (28 Op. Atty. Gen. 19, followed, 28 Op. Atty. Gen. 490.) 

"In many cases statutes relating to the Navy are obviously inapplicable to the 
Marine Corps, either because of express language used therein or because of the mani- 
fest purpose of Congress as apparent from a reading of the law itself or from a consider- 
ation of the conditions and circumstances surrounding its enactment. The word 
'Navy' may be given an extended meaning to embrace the Marine Corps, as has 
been done in many cases, while on the other hand, the facts of a particular case may 
be such as to show that it was used in a more restricted sense as referring to the Navy 
proper, as has likewise been held in many cases. Accordingly, each statute must be 
construed with reference to specific questions arising thereunder; and the word 
'Navy' thus being susceptible of two interpretations, it is always permissible to 
consider the purpose and the spirit of the law and the object which it was intended to 
accomplish, as indicated not only by the language used in the statute but by other 
recognized aids to interpretation." (File 5252-66, J. A. G., May 13, 1915.) File 
26280-61, Sec. Navy, July 10, 1915. 

Section 1621 of the Revised Statutes "does not mean that the Marine Corps shall 
be subject to every law that relates to the Navy — but only to such laws as expressly 
or by reasonable implication include the Marine Corps within their terms, and more 
especially to the Articles for the (better) Government of the Navy." File 3980-575:17 , 
J. A. G., Aug. 19, 1911, p. 10. 
Same — In the Judge Advocate General's opinion above quoted, the conclusion was that 
the law then under consideration, relating to appointments to the Naval Academy 
from "enlisted men of the Navy," authorized such appointments to be made from 
enlisted men of the Marine Corps. On the other hand, one month later, it was held by 
the Judge Advocate General that the law creating a naval reserve did not authorize 
the creation of a Marine Corps reserve, for the reason that several provisions contained 
in said legislation clearly manifested that Congress did not intend to include the 
Marine Corps therein; and that this case was within the principles announced by the 
Attorney General in an opinion holding that a law providing for deposit of savings 
by enlisted men of the Navy did not authorize such deposits by enlisted men of the 
Marine Corps (file 28550-1:3, June 15, 1915, citing 19 Op. Atty. Gen., 616). 

So, also, the Supreme Court in Wilkes v. Dinsman (7 How. 88), after showing by 
forcible argument that enlisted men of the Marine Corps were embraced by the law 
authorizing reenlistment of persons "enlisted for the Navy," added: 

"The reason of the law on such occasions for reenlistment applies with as much 
force to them as to ordinary seamen, because, when serving on looard public vessels 
where their first term seems likely to expire before the cruise ends, their services may , 
under the public necessities, be equally needed with those of the seamen till the 
cruise ends; and hence all of them may rightfully reenlist for the cmise, at any time, in 
anticipation of this." 

Under the decisions of the Supreme Court, Court of Claims, etc.. there is nothing 
strained in holding that the term "any naval officer in the act of August 2, 1912 (37 
Stat. 329), embraces a marine officer, who is an officer in the naval service." 
attached to a corps which is a "constituent," or "component" part of the Navy. 
File 26280-61. 
Same — "Notwithstanding this intermediate character of the Marine Corps, and these 
several provisions allying it in several respects with the military service. I am satisfied 



364 MARINE CORPS. 

that it is properly classed with, and is a part of, the naval service of the United States. 
The question was discussed and so determined by the Attorney General in 1820. 
(See 1 Op. Attys. Genl. 381) and this opinion has been since repeatedly followed. 
Op. Attys. Gen. vol. 11, p. 100; vol. 10, pp. 118, 129; In re Bailey, 2 Taney, 200. 

7< In various acts of Congress making appropriations, the marines are frequently 
referred to as a part of the naval service, and are sometimes described as 'marines of 
the United States Navy.' See 10 St. at Large, p. 100, c. 109, sec. 1; 22 St. at Large, 
C. 97, pp. 472, 479; c. 141, p. 589; c. 391, p. 284." (In re Doyle (18 Fed. Rep. 369) (1883.)) 

In 1904 the Doyle case was approved and followed by the Court of Appeals of the 
District of Columbia in the case of Elliott v. Norris (24 App. D. C, 11). In this 
case the decisions of the Supreme Court of the United States and the statutes re- 
lating to the Marine Corps were reviewed and the conclusion of the court stated as 
follows: 

"These provisions, together with many others that might be cited, indicate beyond 
doubt that the Marine Corps, in the contemplation of Congress, constitutes a con- 
stituent part of the naval service of the country, subject to the laws and regulations 
that govern that arm of the service. And this, we think, has been so held by the 
Supreme Court of the United States." File 26280-61, Sec. Navy, July 10, 1915; 5252-66 
J. A. G., May 13, 1915; 26521-148, J. A. G., Aug. 29, 1916, p. 3. 

90. Same— "The Marine Corps is a part of the Naval Establishment and is subject to the 

laws and regulations for the government of the Navy, save in the single instance when 
it has been 'detached for service with the Army by order of the President.'" (28 
Op. Atty. Gen. 15; See also, 28 Op. Atty. Gen., 490.) 

"The Marine Corps is a component part of the Navy, and its members, when on 
board ships of the Navy, perform many of the same duties required of seamen of the 
Navy, such as those of great gun crews, boat drill, and, on occasion, signalmen, fire 
control," etc. (21 Comp. Dec. 700; see also 3 Comp. Dec. 659.) See File 26280-61, 
Sec. Navy, July 10, 1915; 5252-66, J. A. G., May 13, 1915; 26521-148, J. A. G., Aug. 
29, 1916, pp. 3, 4; 285*0-1:2. 

91. Same— The latest judicial decision bearing on the question whether or not the words 

"naval service" embraces the Marine Corps is the case of Jonas v. U. S. (50 Ct. Cls. 
281), in which it was held that retired officers of the Marine Corps are embraced by the 
words "any naval officer on the retired list" appearing in the act of August 22, 1912 
(37 Stat. 329), with reference to the detail of retired officers to active duty. 

The act of June 7, 1900 (31 Stat. 703 1, which authorized the Secretary of the Navy 
to assign to active duty "any navai officer on the retired list" included retired officers 
of the Marine Corps. The act cited was reenacted with some modification in the 
act of August 22, 1912 (37 Stat. 329), the latter act also applying in terms to "any naval 
officer on the retired list." It was held by the Comptroller of the Treasury, contrary 
to the decision of the Navy Department, that retired officers of the Marine Corps were 
not embraced by the terms of said act of August 22, 1912 (37 Stat. 329). The question 
was taken to the Court of Claims by a retired Marine officer and was decided by said 
court in accordance with the decision of the Navy Department, May 10, 1915, the 
Court of Claims after reciting various statutes on the subject saying: 

"A perusal of the above statutes will indicate the somewhat anomalous position 
occupied by the Marine Corps in the military service. It looks to the Army statutes 
for its rate of pay and to the Navy for its laws and regulations except where detached 
for sendee with the Army, and the same uncertainty as to its position runs all through 
the statutes relating to the Army and Navy. Notwithstanding this fact, in the 
construction of these statutes we must keep in mind the further and perhaps superior 
fact that generally speaking, and as its name indicates, the Marine Corps is a part of 
the Navy. It is that part of the Navy which may upon occasion become a part of 
the Army. The courts have kept this fact in mind in the construction of other 
statutes relating to the military service." File 27231-47, J. A. G., May 31, 1912, cited 
with approval in File 5252-66, J. A. G., May 13, 1915, and File 26521-148, J. A. G., 
August 29, 1916. 

92. Same — The Marine Corps, when not detached for service with the Armv. is a part of 

the naval service (Wilkes v. Dinsman, 7 How., 89; U. S. v. Dunn, 120 U. S., 249). 
C. M. O. 1, 1911, 6. 

The Secretary of the Navy stated March 31, 1906, in referring to the contention 
that the Marine Corps is an "anomalous body intermediate between the Army and 
the Navy": "For this impression there is, properly speaking, no warrant in law. 
* * * Its legal status is, beyond all doubt or question, a part of the naval forces of 
the country, if not a part of the Navy in the strictest sense. " 14 Sol. 25, May 27, 1908. 



MARINE CORPS. 365 

93. Same — "Inasmuch as only detachments of the Marine Corps have ever been or will in 

any likelihood ever be separated and sent out on service with the Army, and as such 
separation occurs but seldom, and as the main body of the corps embracing the head- 
quarters and the majority of the personnel— in fact the essence of the corps, the 
organization itself— would remain in its normal condition; and as the service of such 
detached parts with the Army would be merely temporary, operating to suspend only 
and not to terminate their original status to which they would soon return, it is 
evident that the Marine Corps, in its official character and mode of existence, partakes 
essentially and permanently of the Navy rather than of the Army— in other words, 
that it is in reality a branch of the Navy. Consequently, if there be any doubt as to 
the applicability of the law or a lack of law affecting this corps, the interpretation of 
the law or the prescribing of regulations in the premises, as the case might require, 
would, it seems, naturally be viewed as, to allintents and purposes, a naval question." 
13 J. A. G. 462-463, Aug. 18, 1905. See also File 28550-1 :2; 4792-04, J. A. G. ; 21277 (J. A. 
G. No. 5530); 27231-10, J. A. G., Feb. 9, 1910; 6770-12, May 8, 1912; 27231-47, J. A. 
G., May 31, 1912; 26280-61, July 10, 1915; 5252-66, J. A. G., May 13, 1915; 5460-81, J. A. 
G., May 12, 1916; 13261-486, Sec. Navy, June 8, 1916. 

94. Same— The trend of recent legislation and departmental regulations has been in the 

direction of fixing the status of the Marine Corps definitely as an integral part of the 
naval service. Thus, in the act of June 30, 1914 (38 Stat. 403), the following provision 
appears: "That hereafter the number of men of the Navy and Marine Corps provided 
for shall be construed to mean the daily average number of enlisted men in the naval 
service during the fiscal year. ' ' (See Marine C orps , 96 , 97. ) The new form of sentence 
for general court-martial prescribed in Navy Regulations, 1913, R-816 (4), provides 
for dishonorable discharge of marines from the "naval service" instead of from the 
"Marine Corps" as before. File 5252-66, J. A. G., May 13, 1915, p. 5. 

95. Same — As marine officers perform their duties in connection with the Navy, at sea or 

on shore, and under the orders of the Secretary of the Navy, except when detached 
by the President for service with the Army, there is not only every reason to regard 
marine officers as embraced by the purpose of the act of August 22, 1912 (37 Stat. 329) 
but it would be difficult to suggest any reason why Congress should have intended to 
exclude them from the terms of that act, thus making an exception with reference to 
a very small number of the retired officers in the naval service, without any apparent 
motive for the distinction. File 26280-61. See also Marine Corps, 91. 

96. Same— Enlisted men of the Marine Corps may be allowed to extend their enlistments 

in accordance with the act of August 22, 1912 (37 Stat. 331), which in terms applied to 
"any enlisted man in the Navy." File 26507-214:8, J. A. G., April 5, 1915, quoted 
with approval in File 5252-66, J. A. G., May 13, 1915, p. 5. 

97. Same— The word "Navy" may be given an extended meaning to embrace the Marine 

Corps, as has been done in many cases, while on the other hand the facts of a par- 
ticular case may be such as to show that it was used in a more restricted sense as 
referring to the Navy proper, as has likewise been held in many cases. (File 5252-66, 
J. A. G., May 13, 1915.) File 5460-81, J. A. G., May 12, 1916. 
9S. Same — Abstract of retirement laws showing difference between the laws relating to 
retirement of officers of the Army, Navy, and Marine Corps. File 27231-10, J. A. G., 
Feb. 9, 1910. 

99. Same — When detached for service with Army. See Marines Serving with Army. 

100. Strength, of — The number of enlisted men in the Marine Corps is limited by law. 

File 26524-263:2, Sec. Navy, July 17, 1916. Bv the Act of August 29, 1916 (39 Stat. 
612), the enlisted strength was increased to 14,981. File 26521-148, Sec. Navv, Sept. 
1916. See also Marine Corps, 94; Navy Dept. G. O. 241, Oct. 23, 1916, p. 2.* 

101. Same— The maximum strength of the Marine Corps, when its full quota is available 

for duty, is not now sufficient for the duties required at the various pests and stations. 
File 26524-263:2, Sec. Navy, July 17, 1916. See also Marine Corps, 94, 100. 

102. Same— Method of computing number of commissioned officers in the various grades 

and ranks authorized for the Marine Corps by the Act of August 29, 1916 (39 Stat. 
610). File 26521-148, J. A. G., Aug. 29, 1916. 

103. Summary courts-martial— Convening of. See Summary Courts-Martial, 22. 

104. Same— Action of senior officer present. See Senior Officer Present. 

MARINE CORPS RESERVE. 

1. Act of March 3, 1915 (38 Stat. 940)— Establishing a Naval Reserve did not author- 

ize the establishment of a Marine Corps Reserve. File 5460-S1, J. A. C, May 12, 1916. 
See also Marine Corps, 8S; Naval Reserve, 1. 

2. Act of August 29, 1916 (39 Stat. 593)— Established a Marine Corps Reserve. 



366 MARINE EXAMINING BOARDS. 

MARINE DIVISIONS OF ORGANIZED MILITIA. 

1. Naval Militia act of February 16, 1914 (38 Stat. 283)— Applies to. See Naval 
Militia, 19. 

MARINE DIVISIONS OF THE NAVAL MILITIA. 

1. Naval Militia act of February 16, 1914 (38 Stat. 283)— Applies to. See Naval 
Militia, 19. 

MARINE EXAMINING BOARDS. See also Naval Examining Boards; Promotion. 

1. Acting Assistant Surgeons — Not eligible as members. See Acting Assistant 

Surgeons, 4. 

2. Approved but officer admonished— In a ease where an officer had unfavorable matters 

on his record, including disrespect and insubordination in his manner towards his 
commanding officer, the department stated that although approving the finding of 
the board that the candidate was qualified "it does not, in any way condone the 
offenses. * * * You are hereby admonished to exercise due diligence that there be 
no repetition of such serious offenses during your service" in the future. File 26260- 
3629, Sec. Navy, Aug. 24, 1916. 

3. Civil courts— "Where a complaint of nonsupport has been made against an officer who 

has instituted divorce proceedings against the complainant, and pending the result 
of such suit the officer became a candidate for promotion the department stated in 
a letter to the Marine Examining Board, after quoting C. M. O. 13, 1916, pp. 6-7: 
The board has the duty devolved upon it of making a thorough investigation into 
the matters which are the subject of the correspondence referred to, examining wit- 
nesses with reference thereto if necessary, and of determining as the result of such in- 
vestigation, together with any other matters of an unfavorable character which may 
be upon the candidate's record, whether or not the candidate is morally qualified 
for promotion; and is not authorized to delay its proceedings pending a determination 
of litigation in the civil courts involving the relations between this candidate and his 
wife. It is possible that a final adjudication upon the merits of the controversy may 
never be reached in the civil proceedings, and even if it were, this would not relieve 
the board of its duty to make an independent investigation of the matters at issue, 
in so far as they may affect the moral fitness of the candidate for promotion in the 
Marine Corps. File 26200-3628:1, J. A. G., Aug. 25, 1916. 

4. Constitution of — Marine Examining Boards shall in all cases consist of not less than 

five officers, three of whom shall, if practicable, be officers of the Marine Corps, senior 
to th9 officer to be examined, and two of whom shall be medical officers of the Navy. 
"When not practicable to detail officers of the Marine Corps as members of such examin- 
ing boards, officers of the line of the Navy shall be so detailed. (Act, July 28, 1892. 
27 Stat. 321). File 28027-17, J. A. G., April 25, 1911. 

5. Same — Line officers of the Navy may serve as members of a Marine Examining Board 

if the Marine officers senior to the candidate are not available. File 26260-1368, June 
1, 1911. 

6. Same— Acting Assistant Surgeons are not eligible for duty as members of a Marine 

Examining Board. See Acting Assistant surgeons, 4. 

7. Same — A naval officer may be detailed for duty upon a Marine Examining Board, 

although not upon a Marine Retiring Board. File 28027-17, J. A. G., Apr. 25, 1911. 
See also Marine Retiring Boards, 2. 

8. Same— It is a fatal defect for a member of a Marine Examining Board to be junior to 

the candidate. See Marine Examining Boards, 16; Promotion. 

9. Divorce. See Marine Examining Boards, 3. 

10. Domestic trouble. See Marine Examining Boards. 3. 

11. Junior— Member junior to candidate. See Marine Examining Boards, 8, 16. 

12. Legal questions— Navy Regulations, 1913, R-334 (11) provides that "any question 

of law arising before the board, and anv communication relative to its proceedings, 
shall be submitted to the Judge Advocate General of the Navy." This article is 
applicable to Marine Examining Boards (Naval Instructions, 1913, 1-3664). File 
262(>0-3G23:l, J. A. G, Aug. 25, 1916. 

13. Members, absence of— A member was "temporarily and unavoidably absent on 

duty," but "as a quorum was present the board " proceeded. During a later stage of 
the proceedings this member reported; the candidate was given an opportunity to 
object and the member was sworn. DeDartment approved without comment. File 
26260-281. (Board convened Oct. 2, 190S, and received in department Nov. 12, 1908. 
See also File 26260-2407.) To avoid any possible adverse action by the department 
this should not be followed as a precedent. 



MARINE EXAMINING BOARDS. 367 

14. Moral examination of candidate— The attention of a certain Marine Examining 

Board was invited to Naval Instructions, 1913, 1-3673, concerning the moral examina- 
tion of candidates for promotion in the Marine Corps, and to Navy Regulations, 1913, 
R-334 (10), which contains general instructions concerning the duty of each member 
of che board with reference to determining the moral fitness of candidates for pro- 
motion in the naval service, with which instructions Marine Examining Boards are 
required to acquaint themselves by Naval Instructions, 1913, 1-3664. File 26260- 
3628:1, J. A. G., Aug. 25, 1916. 

15. Navy Regulations, 1913, R-334 (11)— Applies to Marine Examining Boards. See 

Marine Examining Boards, 12. 

16. Rank of — Recard of proceedings of a Marine Examining Board are fatally defective 

if one of the members is junior to candidate. File 26260-1368, June 1, 1911. But see 
File 26260-1512, Sec. Navy, Oct. 12, 1911; Promotion. 

17. Records— The department desires that the records of the proceedings of the examining 

board which conducted the last examination of candidates for appointment as second 
lieutenants. U. S. Marine Corps, be forwarded to the Judge Advocate General of the 
Navy, to be recorded and filed. File 13201-414:5, Sec. Navy, March 22, 1913. 

18. Resolving— Itself into a Marine Retiring Board. See Marine Retiring Boards, 3. 

19. Witnesses. See Naval Examining Boards, 25, 26. 

MARINE LEAGUE. 

1. Naval Militia— Service of Naval Militia outside of the "three mile limit." See Naval 

Militia, 20. 

2. Target practice — Within marine league of a foreign state. See Target Practice. 

MARINE RETIRING BOARDS. 

1. Constitution of — In case of an officer of the Marine Corps, the retiring board shall be 

selected by the Secretary of the Navy, under the direction of the President. Two- 
fifths of the board shall be selected from the Medical Corps of the Navy, and the 
remainder shall be selected from officers of Marine Corps, senior in rank, so far as 
may be, to the officer whose disability is to be inquired of. (Sec. 1623, R. S.) 

A retiring board shall consist "of 'not more than nine nor less than five officers, 
two-fifths of whom shall be selected from the Medical Corps." (Sec. 1246, R. S.) 
File 28027-17, J. A. G., April 25, 1911. 

2. Same — Although naval officers may be detailed on Marine Examining Boards, there is 

not authority to appoint such officers on a Marine Retiring Board. Except the 
medical members of a Marine Retiring Board, all members shall be selected fr^m 
officers of the Marine Corps, and, while it is discretionary with the convening authority 
to appoint members junior to the officer before the board, yet they should be "senior 
in rank as far as may be." File 28027-17, J. A. G., April 25, 1911. See also Marine 
Examining Boards, 7. 

3. Marine Examining Board— Resolved into a Marine Retiring Board. See File 26200- 

3237. See also Promotion, 27, 85, 86, 165. 

4. Rank of. See Marine Retiring Boards, 1, 2. 

MARINES SERVING WITH ARMY. 

1. First Brigade— Detached for service with the Army— 

224 
"Flag Officer, 'Arkansas,' "April 27, 1914. 

"Vera Cruz, Mexico. 

"Pursuant to order of the President of the United States, the First Brigade of 
Marines is hereby detached from duty with the U. S. Atlantic Fleet and detailed for 
service with the U. S. Army. 

"You will issue the necessary orders to the brigade commander and direct him 
to report, with the brigade under his command, to the officer in command, LT. S. 
Army, forces at Vera Cruz, Mexico. 

"While thus detached for service with the Army, the marines so serving will be 
governed by the provisions of section 1621, Revised* Sta tales. 

"The First Brigade includes all officers and enlisted men of the Marine Corps now 
at Vera Cruz, except those forming parts of regular complement of ships. Those 
marines now en route to Vera Cruz will join the First Brigade. 

"Daniels." 

See File 26251-9965. 

2. Jurisdiction— An enlisted man of the Marines Corps is not amenable to trial by a naval 

court-martial for an offense alleged to have been committed by him while the organi- 
zation of which he is a member was detached for service with the Army by order of 

50756°— 17 24 



368 MARINES SERVING WITH ARMY. 

the President. Accordingly, held, that when a marine was brought to trial by a naval 
court-martial under the above circumstances, and at the outset of the trial pleaded 
to the jurisdiction of the court, such plea should have been sustained. File 26251- 
9965:3, J. A. G., Mar. 24, 1915; C. M. O. 31, 1915, 6. See Marines Serving with 
Army. 3 for converse. See Army, 7 for jurisdiction of Army. 

3. Same — The records of the department show that members of the First Brigade of 

marines were tried by naval courts-martial after detachment of said brigade for service 
with the Army for offenses committed before they reported to the commanding 
officer of the Army for duty. The order detaching the first brigade for service with 
the Army was issued by the Secretary of the Navy April 27, 1914, and pursuant 
thereto, on May 1, 1914, the commanding officer of said brigade reported to the officer 
in command of the United States Army forces at Vera Cruz. After the latter date, 
three men were tried, one on May 16, 1914, and two on May 22, 1914 (See G. C. M. 
Rec. No. 28775: 28782; 28783). File 2G251-9965. See Marines Serving with Army, 
2, for converse. 

If a marine serving with Army is placed under arrest upon a charge while still 
serving with the Army, then such action is taken by officers of the Marine Brigade 
in their capacity as subordinates of the War Department; Army jurisdiction thereby 
attaches; and can not be divested by any subsequent change in the status of tae 
accused. He would accordingly still be amenable to Army jurisdiction for all pur- 
poses of trial and punishment upon said charge. (See Carter v. McClaughry, 183 
XJ. S. 365; Barrett v. Hopkins, 7 Fed. Rep. 312.) File 26251-9965. 

4. Medical department— Officers and enlisted men of the Medical Department of the 

Navy, serving with a body of marines detached for service with the Army in accord- 
ance with the provisions of section sixteen hundred and twenty-one of the Revised 
Statutes, shall, while so serving, be subject to the rules and articles of war prescribed 
for the government of the Army in the same manner as the officers and men of the 
Marine Corps while so serving. (Act of August 29, 1916, 39 Stat. 573.) 

5. Previous convictions— While detached for service with Army. See Previous Con- 

victions, 3. 

6. Sentence imposed by Army court-martial— Mitigated by President after return of 

accused to naval jurisdiction— A private of the U. S. Marine Corps, while serving 
with the Army at Vera Cruz, Mexico, was tried by an Army general court-martial 
and sentenced "to be dishonorably discharged from the sen-ice of the United States, 
forfeiting all pay and allowances due him, and to be confined at hard labor at such 
place as the reviewing authority may direct, for one (1) year." 

The foregoing sentence was approved by the convening authority July 3, 1914, 
but the period of confinement was reduced to hard labor for six months and the for- 
feiture of pay reduced to $10 a month for the same period. As thus mitigated, it was 
directed that the sentence "be duly executed at the station of his company. ' ' 

The above-named man was returned to naval jurisdiction and it was recommended 
by the Commandant of the Marine Corps "that the unexecuted portion of the con- 
finement and loss of pay in this case be remitted on the date of expiration of * * * 
enlistment, and that he be discharged on that date— namely November 11, 1914." 

In view of the fact that this man had passed from the jurisdiction of the War Depart- 
ment, it was held by the Judge Advocate General of the Army "that the War Depart- 
ment has no authority now to take any action with regard to the sentence." (War 
Bulletin No. 50, Nov. 14, 1914; War Bulletin No. 52; Dec. 14, 1914. p. 7). 

The act of February 16, 1909 (35 Stat., 621), section 9, reads as follows: 

"That the Secretary of the Navy may set aside the proceedings or remit or mitigate, 
in whole or in part, the sentence imposed by any naval court-martial convened by 
his order or bv that of any officer of the Navy or Marine Corps." (Navy Regulation, 
1913, R-847 (i).) 

While it was undoubtedly the spirit of this law to empower the Secretary of the 
Navy to remit or mitigate sentences imposed by courts-martial upon all persons in 
the naval service serving under the jurisdiction of the Navy Department, yet in view 
of the specific language of the act quoted a doubt arose as to whether the Secretary 
of the Navy was authorized to remit the unexpired sentence in this case, the court- 
martial not having been convened "by his order or by that of any officer of the Navy 
or Marine Corps," and not being a "naval court-martial." 

The power to remit sentences of this character is, of course, possessed by the Presi- 
dent. It was accordingly recommended to the President that so much of the sentence 
in the case of this man, involving confinement and loss of pay as remained unexecuted 
on November 11, 1914, be remitted, in order that he could be discharged from the 



MARINES SERVING WITH ARMY. 369 

service on that date, and on November 11, 1914, the President approved this recom- 
mendation. File 26267-127; C. M. O. 49, 1914, 4-5. 
Status — The accused was charged with " Assaulting with a deadly weapon and wound- 
ing another person in the Navy," November 22, 1914, while said brigade of the Marine 
Corps was detached for service with the Army by Executive order issued in accord- 
ance with section 1621, Revised Statutes. [Navy Regulations, 1913, R-4101 (2).] 

From a report of the War Department it appears that the First Brigade of marines, 
including the accused, was detached by Executive order from service with the Army 
and returned to naval jurisdiction, November 23, 1914, that is, the day following the 
alleged offense of the accused. 

A report of the offense was made in due course and forwarded through official chan- 
nels to the Commandant of the Marine Corps, and by him transmitted to the Secre- 
tary of the Navy with recommendation that the accused be brought to trial by naval 
court-martial. 

It was not specifically brought to the attention of the department that the alleged 
offense was committed by the accused while the marine brigade to which he belonged 
was detached for service with the Army. Accordingly, charge and specification cov- 
ering the offense was preferred by the Secretary of the Navy, against the accused, 
December 23, 1914, for trial by a naval general court-martial at Philadelphia, Pa., 
the case being handled by the department in the routine manner, no consideration 
being given to the question of jurisdiction, which, as stated, was not at that time 
presented . 

At the outset of his trial, the accused, through his counsel, pleaded to the jurisdic- 
tion of the court, citing section 1621, Revised Statutes, and Navy Regulations, 1913, 
R-4105, in support of the contention that the Secretary of the Navy was not empow- 
ered to convene a court-martial for the trial of the accused under the circumstances 
above stated. 

The court decided that "the plea of want of jurisdiction is overruled, and the trial 
will proceed." The accused thereupon pleaded "not guilty"; the trial was proceeded 
with, he was found guilty by the court, and a sentence imposed involving confinement 
at hard labor for 18 months and dishonorable discharge from the Marine Corps. 

The Judge Advocate General of the Navy held that the naval court-martial was 
without jurisdiction. Thereafter the Secretary of the Navy, with the concurrence of 
the Secretary of War, referred the matter to the Attorney General for his opinion. 
No official opinion was rendered by the Attorney General as in the meantime, after 
a conference between the Secretary of the Navy and the Attorney General, it was 
decided by the Secretary of the Navy to approve the proceedings and sentence of the 
naval court-martial and to execute the sentence, which, however, was mitigated. 

The accused, shortly after the sentence was approved, instituted habeas corpus 
proceedings before the United States judge for the Eastern District of Pennsylvania, 
on the ground that, as originally alleged by him, the proceedings of the naval court- 
martial were null and void owing to lack of jurisdiction, and that his confinement 
pursuant thereto was accordingly illegal. This contention was sustained, as shown 
by the following opinion: 

This case comes before us as in effect a case stated to have section 1R21 of the Revised 
Statutes (Comp. St. 1913, § 2948) judicially construed. We dispose of it as a case in 
which the facts appear of record by the pleadings. There is no controversy over the 
facts. We state them as presented by counsel for the United States 

The relator belonged to the Navy, serving in the Marine Corps. The brigade in 
which he was a private was detached for service with the Army by order of the Presi- 
dent. While the brigade was on this detached service he was charged with having 
committed an act which is made an offense both by "the rules and articles of war 

J described for the government of the Army" and by "the laws and regulations estab- 
ished for the government of the Navy." For this he was placed under guard bv 
military order. The next day the brigade to which he belonged was " bv Executive 
order withdrawn from the detached service of the Arm v." Subsequently he was 
brought "before a naval court-martial for trial," and was tried, convicted, and sen- 
tenced for an offense against the laws and regulations of the Navy. When arraigned 
for trial he entered a plea to the jurisdiction of the court. The plea was based upon 
the fact that at the time the offense was charged to have been committed he, as a 
private in a brigade of the Marine Corps, was serving with the Army, his brigade 
being on detached service with the Army by order of the President, and' on the propo- 
sition of law that the Marine Corps, when on such service, is not subject to the laws 



370 MARINES SERVING WITH ARMY. 

and regulations of the Navy. The plea was overruled. He is now seeking to raise 
the same question through the present pro?eedings. 

The fact is admitted. The legal conclusion is denied. The officials of the Armv 
and Navy Departments, who have considered and passed upon the question, agree 
only in this: That it is one of doubt and difficulty, and that it turns upon the meaning 
of R. S. § 1621. That section is as follows: 

"The Marine Corps shall, at all times, he subject to the laws and regulations estab- 
lished for the government of the Xavy, except when detached for service with the 
Army by order of the President; and when so detached they shall be subject to the 
rules and articles of war prescribed for the government of the Army. " 

The question is: 

"Was the relator subject to the laws and regulations established for the government 
of the Xavy, or to the rules and articles of war prescribed for the government of the 
Army?" 

The arguments presented in support of the opinions given during the court-martial 
proceedings, and since the finding, are so full and exhaustive that nothing of value 
can be added, unless perhaps it be this trite observation: The question is one the 
answer to which must be found by a resort to the statute. The moment one goes, 
outside of the statute, and into the general considerations which surround the subject 
there is evoked at once a flood of conflicting arguments of almost equal plausibility e 
which serve only to produce doubt and confusion of mind. We have stated th Q 
question. What answer does the statute give? It is that the relator was subject t 
the Naval Code unless he was on service with the Army, in which latter event he wa s 
subject to the Army Code. There is really nothing to* be added to this clear answer. 
Some aid might possibly be gained by a view of the answer from another angle. This 
is afforded by transposing the clauses in the sentence quoted from the act. If we do 
this, we have this as the result: 

"The Marine Corps is subject to the articles of war while on service with the Army 
by order of the President. At all other times it is subject to the 1 aws and regulations 
of the Navy." 

We were impressed with this as the true meaning of the statute at the hearing. 
At the request of counsel for the I nited States a decision was withheld awaiting the 
:Submission of paper books. These have been submitted. As we interpret that on 
behalf of the United States, it is an admission that the argument at bar against the 
above construction of the act of Congress was unsound, but that the jurisdiction of 
the naval court-martial can be upheld by the distinction between laws which define 
the offense and laws which constitute the tribunal by which the offense is to be tried. 
The logic of this is that it admits the relator could not be tried for an offense against 
the Xavy regulations and drives us to the position that, although he could be tried 
only for an offense d?fined by the articles of war, he might be tried by either a Navy 
or Armv court-martial. 

The argument has more plausibility than convincing power. The distinction 
between the offense denned by a law and the court constituted by the same law to 
try the offender is clear enough and is recognized. The argumeut concedes, however, 
that the offender can not be tried for any act not made an offense by the body of 
laws and regulations to which he is subject. The same laws and regulations which 
define the offense constitute and designate the court which is to try the offender. 
By what token, then, can it be said that the offender is subject to some of these laws 
and regulations, but not to others? 

The reference to prior legislation gives no comfort of aid to the argument. Granted 
that the status of the Marine Corps was at first doubtful. It rendered service at times 
with the Navy and at times with the Army, -without being definitely or permanently 
attached to either department. Its -'primary" relation was finally settled to be with 
the Navy, but it had special and temporary Army relations when on service with 
the ArmV. The earlv statutes gave recognition to this by providing that it should 
be subject to the laws and regulations of the Xavy, except when detached by aider 
of the President for service with the Armv. The present statute added the clause 
that when so detached it should be subject to the articles of war. This does not 
weaken, but confirms the inference that Congress has expressed the meaning above 
given to the statute. The conclusion reached is that the relator was not sub'ect 
to the laws and regulations of the Xavy. and that a court established by these laws 
was without authority of law to impose" or enforce the sentence pronounced. 



MARINES SERVING WITH ARMY. 371 

This conclusion indicates the disposition which should in the usual course be made 
of this proceeding. A very practical feature of the case, however, is that through the 
remission of a part of the sentence imposed it is about to expire. The relator has 
already undergone imprisonment while his case was under consideration. He 
was charged with the commission of an act which was an offense under the articles 
of war. For this he was arrested by being placed under guard by the military author- 
ities. The conclusion reached involves the thought that this restraint of his liberty 
was in accordance with law. The relator, rather than submit himself to an order 
of the court, might prefer to await the time of his release by expiration of his sentence. 
We have therefore concluded to dispose of the question submitted to us as has been 
done, and grant leave to relator to move for such order as he may ask to have made. 

In this connection, also, we wish to add that we have not considered the question 
of the power of the District courts to issue writs of habeas corpus in cases of this general 
character. When the cause was argued at bar, we understood that no such question 
was raised; but a ruling on the question we have discussed was desired by the authori- 
ties of both the War and Navy Departments, as well as the relator. We have there- 
for 3 disposed only of the question raised at the argument. (United States ex rel. 
Davis v. Waller, 225 Fed. Rep. 673.) 

The accused, through counsel, moved for an order discharging him from custody 
under the sentence of the naval court-martial, which order was accordingly made 
by the Judge. (See G. C. M. Rec. No. 30533; File 26251-9965.) C. M. O. 31, 1915, 6-10. 

8. Same— Section 1621 of the Revised Statutes is "explicit in saying that when such 

an order is made by the President, the Marine Corps shall be subject to the rules and 
articles of war prescribed for the government of the Army, and then of course it be- 
comes a 'corps of the Army.'" This situation is to be distinguished from that in 
which the Marine Corps may cooperate with the Army without an order of the Presi- 
dent detaching it for service with the Army, which is a case "of cooperation, but not 
of incorporation." (28 Op. Atty. Gen. 19.) File 26251-9965:17, J. A. G., Aug. 31, 1915. 

9. Same — An analysis of section 1621 shows that it contains three parts, namely, 1. 

It provides that under normal conditions marines shall be subject to the laws and 
regulations of the Navy; 2. Thatwnen detached by the President for service with the 
Army, marines shall not be subject to naval jurisdiction; and 3. It makes provision 
for the special condition existing when marines are so serving with the Army, by 
providing that thev shall then "be subject to trie rules and articles of war prescribed, 
for the government of the Army." File 26251-9965:17. 
10. Same — It is well established that the Marine Corps occupies a dual status, that under 
normal conditions it is a part of the Navy, but that when detached for service with the 
Army it becomes a part of the Army. Therefore, the status of a marine detached 
does undergo a change in consequence of his transfer to Army jurisdiction. In other 
words, it is not merely a change in the laws to which he is subject, but a change in his 
status, and while serving with the Army he is a part of the Army just as fully as are 
privates who have actually enlisted in the Army. File 26251-9965. 

MAKE OF DESERTION. See also Remedial Laws. 

1. Civil War cases. See File 19974-3, Sec. Navy ; 26539-551, J. A. G., 17, 1913; 26539-458:2, J. 

A. G., Apr. 25, 1912; 26539-750, J. A. G., Nov. 8, 1916. 

2. Clemency promised— In a case where it appeared from the record of proceedings and 

from the files of the department, that through inadvertence an accused convicted of 
desertion was given to understand that if ho surrendered himself the mark of desertion 
in his case would be removed, so much of the sentence as provided for confinement 
was remitted, and he was dishonorably discharged in accordance with the sentence. 
C. M. 0. 6, 1894. See also Desertion, 130. 

3. Definition— The entry on the enlistment [sendee] record, that the party was charged 

with having deserted on a certain date. File 26251-1963:1, J. A. G., Aug. 17, 1910, 
pp. 4, 5. 

4. Pardon issued to a deserter— A pardon issued to a deserter from the Navy does not 

authorize the Navy Department to remove the mark ol desertion entered on it-< 
records, the entrv being one of fact, which is not altered by the pardon. File 262M- 
1963:1, Ausj. 17, 1910; compare, file 1768-D, 1902. 

5. Removal of— From records. See File 20539-458:2, J. A. G., Apr. 25, 1912. 

0. Same— The mark of desertion can not under the law be removed, unless it be conclu- 
sively shown to have been erroneously entered. File 7657-209, J. A. G., Nov. 17, 1913. 
See also File 26251-12396:2, J. A. G., Oct. 30, 1916. 



372 MARK OF DESERTION. 

7. Same — In the absence of legislative requirement, the mark of desertion should not be 

removed from the department's records in any case unless it is made to appear, as a 
matter of fact, that such mark was erroneously entered. File 26251-1963:1, J. A. G., 
Aug. 17, 1910. See also File 26251-12396:2, J. A. G., Oct. 30, 1916. 

8. Same — Where it was recommended that the charge of desertion be removed from the 

record of a deceased enlisted man the department stated: " In the absence of evidence 
showing that the charge of desertion appearing upon the records against the name of 
* * * was erroneously entered or retained, it is not within the power of the Presi- 
dent to remove such charge. The official record of a fact of this nature, where no 
error has been made therein, can not be changed bv executive authority." File 
3846-98, Sec. Navy, June 10, 1898. 

9. War— Act of August 14, 1888, does not authorize removal of mark of desertion. File 

19475-5, Sec. Navy, Nov. 17, 1915. 

MARRIAGE. See also Weddings; Wife. 

1. Common law. See Death Gratuity, 12; Wife, 5. 

2. Prisoner— Permission granted by the Secretary of the Navy to general court-martial 

prisoner to marry, should both parties consent and should the girl appear for that 
purpose at the Naval Prison, Portsmouth, N. H. File 20251-11340:18, Sec. Navy, 
Feb. 15, 1916. 

MARSHAL, U. S. See Rewards. 3. 

MARTIAL LAW. 

1. Haiti. See File 5526-39, J. A. G., March 7, 1916. 

MARTYR. 

1. Accused as. See Challenges, 23. 

MAST. See C. M. O. 80, 1898, 1. 

MASTERS. 

1. General court-martial— Tried bv. G. O. 211, June 7, 1S7G; C. M. O. 39, 1S80; 20, 1881; 

16, 1882; 21, 1882. 

2. Grade of— By act, March 3, 1883(22 Stat. 472), the title of the grade of master was changed 

to that of lieutenant. G. O. 305, Mar. 31, 18S3. 

MAS TER-AT-ARMS . 

1. Superior officer. C. M. O. 31, 1908, 3. 

MATES. See also Dismissal, 12. 

1. Deposits. See Deposits, 4. 

2. General court-martial— Tried by. C. M. O. 54, 1892; G. C. M. Rec. 28932. 

3. Retirement. See File 3031-57, J. A. G., June 25, 1908. 

4. Sentences of dismissal— Approval by President unnecessarv. See Mates, 5; File 

26255-14/A, etc., J. A. G., May 4, 1909. 

5. Status of— Mates are neither commissioned nor warrant officers and their status may 

be compared with that of paymasters' clerks, i. e., the approval of the President 
of a sentence involving dismissal of a court-martial is unnecessary, the sentence 
becoming operative upon the approval of the convening authority. 

6. Same -Mates have been held bv the Attorney General tc be officers of the Navv with n 

the meaning of the act of June 29, 1906 (34 Stat. 554). File 26509-33, J. A. G., Mar. 
24, 1910, p. 5. 

7. Same— Mates are officers not holding commissions or warrants, and not entitled to them, 

but are petty officers promoted by the Secretary of the Navy from seamen of inferior 
grades. They are distinguished from other petty officers only in the fact that their 
pay is fixed by statute instead of by the President. From this it would seem to 
follow that, although their pay is fixed by law, instead of by the President, they are 
in other respects entitled to the emoluments of petty officers. (U. S. v. Fuller, 160 
U. S., 593.) File 3031-57, J. A. G., June 25, 1908, p. 3. See also R. S. 1409, 1410. 

8. Superior officer— A mate is held by Navy Regulations, 1913, R-64, to be a superior 

officer within the meaning of the Articles for the Government of the Navy. C. M. O. 
49, 1915, 19. See also Officers, 33. 

MAYHEM. See also Words and Phrases. 
1. Enlisted man— Charged with. C. M. O. 22, 1916, 2. 



MEDICAL OFFICERS OF THE NAVY. 373 

MEDALS. 

1. Foreign Governments — Acceptance by officers and enlisted men of the naval service. 

See Decorations. 

2. Good conduct medals. See Good Conduct Medals. 

3. Honor — Medals of honor. See Medals of Honor. 

MEDALS OF HONOR. 

1. Act of Marcli 3, 1915 (38 Stat. 931)— Provides m part, "The President of the United 

States is hereby empowered to prepare a suitable medal of honor to be awarded to 
any officer of the Navy, Marine Corps, or Coast Guard who shall have distinguished 
himself in battle or displayed extraordinary heroism in the line of his profession." 
Under the authority of the foregoing statute the Secretary of the Navy awarded 
medals of honor to officers of the Navy and Marine Corps who participated in the 
occupation of Vera Cruz, Mexico, in 1914. See File 8627-189, J. A. G., May 12, 1915. 
See also White v. U. S., 191 U. S. 552. 

2. Clemency— Medals of Honor as grounds for clemency in court-martial cases. See 

Clemency, 34. 

3. Coast Guard — In so far as concerns the award of medals of honor to the Coast Guard, 

under the provisions of the act of March 3, 1915 (38 Stat. 931), it may be remarked that, 
except when serving as a part of the Navy in time of war or when the President shall 
so direct, this appears to be a matter under the Secretary of the Treasury, who would 
be empowered to construe the law for his department. File 8627-189, J. A. G., May 
12, 1915. 

4. Corean forts— An enlisted man was given a Medal of Honor for personal valor in the 

engagement connected with the capture of the Corean Forts, June 9, 10, 1S71. Held: 
that the expedition which resulted in the capture of the Corean Fans, June 9, 10, 1871, 
comes within the meaning of the words "in any war" as used in the act of April 27, 
1916 (39 Stat. 53). File 28653-1, Sec. Navy, July 24, 1916. See G. 0. 169, Feb. 8, 1872, 
which awarded Medals of Honor to six marines and five bluejackets for heroism 
"In the attack on and capture of the Corean Forts, June 11, 1871;" G. 0. 180, Oct. 10, 
1872, which awarded Medals of Honor, as above, to two landsmen. 

5. Desertion — Forfeiture of Medals of Honor by desertion. See G. O. 59, June 22, 1865. 

6. Laws relating to. See File 7741-58. See also File 8627-189:1, J. A. G., March 23, 1916. 

7. Vera Cruz, Mexico— Medals of Honor awarded. See Medals of Honor, 1 . 

MEDICAL ATTENDANCE. See also Families. 
1. Families of officers — There is no provision of law which prohibits professional attend- 
ance by medical officers upon families of officers of the naval sendee, and if such at- 
tendance does not interfere with the necessary service to officers and men of the Navy 
and Marine Corps, it is not contrary to law. File 28019-17, J. A. G., Jan. 26, 1912. 

MEDICAL BOARD OF SURVEY. See C. M. O. 24, 1914. 

MEDICAL CERTIFICATES. 

1. Accident policy of officers— Surgeons can not sign unofficial medical certificates on acci- 

dent policy of officer. File 26806-15; 5195-61:1. See also Accident Policy, 1. 

2. Record of proceedings. See Confinement, 5. 

3. Insurance policy. See Medical Records, 3. 

MEDICAL EXAMINERS. 
Board of. See Board of Medical Examiners. 

MEDICAL EXPERT WITNESSES. See Expert Witnesses. 

MEDICAL OFFICERS AND ENLISTED MEN. 

1. Army— Serving with a body of Marines detached for service with Army. See Marines 
Serving with Army, 4. 

MEDICAL OFFICERS OF THE NAVY. 

1. Disbursing officer, special— Appointment as. See File 7039-279, J. A. G., Jan. 18, 

1913. 

2. Drunk— A medical officer might be called at any time to render professional services 

of vital importance, and if he is drunk he is incapacitated for such work. C. M. O. 
43, 1915, 2. See also Drunkenness. 57, 5S: Medical Officers of the Navy, 4. 11. 

3. Same— Only one on board ship. C. M. O. 52, 1882. 

4. Same — "Every naval officer, and especially a medical officer, whose use of intoxicants 

is carried to such an extent that his superiors causo him to be tried and who is con- 



374 MEDICAL OFFICERS OF THE NAVY. 

victed of drunkenness on duty, should be sentenced to dismissal from the Navy and 
such sentence should be inexorably carried into execution. Whatever charity or 
assistance may be extended to such officers should be given when they reach some 
other walk in life than the naval service. They are worthless members of their pro- 
fession, and should, in every case, be forced off the list of officers of the Navy." C. M. O . 
101, 190G. 

5. Duty of — Includes attendance upon families of officers of Navy and Marine Corps. 

See Families; Medical Attendance, 1. 

6. Hospital snips— Command of. See File 15285-59:3. 

7. Neglect of duty— Tried by general court-martial for failing to proceed on board a 

torpedo boat when directed to render medical assistance to an enlisted man who was 
seriously ill, C. M. O. 12, 1908, 1. 

In a case where a medical officer neglected his duty in that he wilfully neglected to 
go on board a vessel and attend to a sick enlisted man when he had '''ample time and 
opportunity to perform such service," the department in part stated: "In his pro- 
fession, more than in any other branch of the service, prompt attention to the calls of 
duty is especially demanded. Its neglect may at any time prolong or increase suffer- 
ing, and even involve the sacrifice of life. 

"A surgeon should never be deaf to the appeals of those who have the legal right to 
his aid and services." C. M. O. 1, 1882, 3. 

8. Private practice. See File 17088-8, Jan. 4, 1910; 6320-9, 15, and 15:1, Bu. Nav. 

9. Retired officers— May be employed on active duty. C. M. O. 22, 1915, 10. 

10. Unprofessional conduct— A medical officer attempted to shield a commanding 

officer's abandonment of post "by the execution of * * * two unprofessional and 
disingenuous certificates." C. M. O. 59, 1882, 7. 

11. Vulgar and indecent acts— Medical officers of the Nary are professionally brought 

into the most confidential and intimate relations with other officers of the Naval 
Service where they may be stationed, the families of such officers, and members 
of the Nurse Corps (female) of the Navy, who may be so situated that they can not, 
if they would, receive medical treatment other than that furnished them by such 
officers. 

Therefore a medical officer guilty of vulgar and indecent acts and associations 
should be sentenced to dismissal. Any other sentence would put the members of 
the general court-martial on record as considering him a fit and proper person to 
treat said members, their associates in the Naval Service, and the ladies of their 
families, in a professional capacity. 

The department could not assume the responsibility of ordering to duty in the 
Navy a medical officer who had been found guilty by general court-martial of such 
offenses, even though he should not be sentenced to dismissal. File 26251-11181, 
Sec. Navy, Dec. 17, 1915; G. C. M. Flee. No. 31436. 

MEDICAL RECORDS. 

1. Hospital records— Where satisfactory reasons are given by a man formerly in the naval 

service, in his request for a copy of the medical record of his case, the department 
will furnish such to the man himself or , if dead to his next of kin, upon proof of identity, 
if such a record is available. But such records are considered private and confidential 
by the department. File 5195-61:1, J. A. G., March 21, 1912. 

2. Line of duty entries (R-2902). See File 7657-313, J. A. G., Sept. 28, 1915; 7657-298, 

J. A. G., Sept. 28, 1915; 7657-309, Sec. Navy, Sept. 30, 1915. 

3. Private and confidential— It has been the practice of the department to consider a 

man's medical record as private and confidential and that it should be given to no 
one but the man himself, or if dead, to his next of kin, and furthermore, that such 
action is to be taken only upon application to the department direct. 

The department, therefore, held that the filling out of a blank certificate for an 
insurance company, giving the medical history of an enlisted man while a patient 
at a naval hospital by a naval medical officer, without authority of the department, 
was an unwarranted and unauthorized act on the part of the medical officer. File 
12475-52:8, Sec. Navy, Dec. 12, 1914; C. M. O. 6, 1915, 14. See also File 5942-262:1, 
Sec. Navy, June 17, 1916. See also 12475-70:2 and 3, Sec. Navy, Feb. 25, 1916 in which 
information was furnished in answer to interrogatories submitted to a commission 
dulv issued to take the testimony of the Surgeon General of the Navy in Washington, 
D. C. 



MEDICAL RECORDS. 375 

4. Same— The provisions of Court-Martial Order No. 6, 1915, page 14, do not prohibit the 

Bureau of Medicine and Surgery from supplying to an enlisted man, or, after his 
death, to his next of kin, his medical record, as heretofore. The instructions contained 
in the order above cited, "that such action is to be taken only upon application to 
the department direct," were not intended as a restriction upon the action of the 
Bureau of Medicine and Surgery, which acts for the department, but only upon 
the action of officers other than the Chief of the Bureau. File 26510-1207, Sec. Navy, 
June 14, 1915. See also G. O. 121, Sept. 17, 1914, p. 9, sec. 18 (c); C. M. O. 22, 1915, 9. 

5. Same — Navy Regulations, 1913 R-2958 provides that "the medical officer shall not 

give an unofficial certificate of ill health or of inability to perform any duty. ' ' There- 
fore, a medical officer is not authorized, without approval by the department in each 
specific case, to (a) sign the form used in secret fraternal orders to secure sick dues; 
(b) to sign a death certificate, for presentation to a secret society or lodge having 
death benefits; or (c) fill out insurance blanks in the case of death of a naval patient. 
It is to be understood that this opinion relates to the medical records of officers and 
enlisted men in the naval service who have been patients of the medical officer of 
whom the certificates are requested. Where certificates of death, required by State 
laws, in connection with the transportation of remains are required, such certificates 
would be "official certificates," and would not come under the prohibition of Navy 
Regulations, 1913, R-2958. (See C. M. O. 6, 1915, p. 14; 22, 1915, p. 9.) File 12475-52:10, 
J. A. G., Aug 5, 1915; C. M. O. 29, 1915, 7. See also File 12475-70:2, 3, Sec. Navy, Feb. 
25, 1916; 12475-71, J. A. G., March 16, 1916; 12475-52:10, Aug. 5, 1915; 12475-52:8, Dec. 
5, 1914; 26806-15, April 8, 1909; Naval Instructions, 1913, 1-26; File 12475-90, J. A. 
G., Sept. 25, 1916. 

6. Same— "You are hereby authorized to attend the Surrogates' Court of King's County, 

New York, if duly subpoenaed, and to furnish all such information as the court may 
hold proper as to the mental and physical condition of late. * * * Chief Carpenter, 
U. S. Navy, retired." File 12475-70:1, Sec. Navy, Feb. 9, 1916. 

MEDICAL, RESERVE CORPS OF THE ARMY. 

1. Act establishing. See Medical Reserve Corps of the Navy, 1. 

MEDICAL RESERVE CORPS OF THE NAVY. 

1. Appointment of officers to— The act of August 22, 1912 (37 Stat. 344), established a 

Medical Reserve Corps in the Navy "under the same provisions, in all respects, 
* * * as those providing a Medical Reserve Corps for the Army." The act es- 
tablishing a Medical Reserve Corps for the Army provides in part : 

"That nothing in this act shall be construed * * * to prohibit an officer of 
the Medical Reserve Corps not designated for active duty from service with the 
militia, or with the volunteer troops of the United States, or in the sendee of the 
United States in any other capacity, but when so serving with the militia or with 
volunteer troops, or when employed in the service of the United States in any other 
capacity, an officer of the Medical Reserve Corps shall not be subject to call for duty 
under the terms of this section." (35 Stat. 68.) 

The law authorizing the appointment of Acting Assistant Surgeons reads in part 
as follows: 

"The President is hereby authorized to appoint for temporary sendee twenty-five 
acting assistant surgeons, who shall have the relative rank and compensation of 
assistant surgeons." (30 Stat. 380.) 

In view of the above, officers of the Medical Reserve Corps, not on active duty, are 
available for appointment as Acting Assistant Surgeons, but while so serving they can 
not be called into active service as officers of the Medical Reserve Corps. File 28407-13, 
J. A. G., March 24, 1915; C. M. 0. 12, 1915, 10. Sec also File 28407-16, J. A. G., July 31, 
1915. 

2. Board of Medical Examiners— Medical Reserve Corps officers eligible as members. 

See Boards of Medical Examiners, 3, 4. 

3. Dental Reserve Corps— Not established by act, August 22, 1912 (35 Stat. OS), but 

authority is contained in such act for appointment of dental surgeons to Medical 
Reserve Corps. See Dental Reserve Corps. See also File 13707-20:2. J. A. Q., 
Dec. 28. 1912; C & S. C, 4, 6. But see Act, Mar. 4, 1913 (37 Stat. 903), and Act. 
Aug. 29, 1916 (39 Stat. 571), which did establish a Dental Reserve Corps. 

4. Discharge — "The President is authorized to honorably discharge from the Medical 

Reserve Corps any officer thereof whose services are no longer required." (Act. 
August 22, 1912 (35 Stat. (!>S).) This provision, while permissive in form, misdit well 



376 MEDICAL RESERVE CORPS OF THE NAVY. 

be construed as mandatory, under settled rules of statutory construction. File 
28407-16, J. A. G., July 31, 1915. 

5. Government Hospital for the Insane— Pay while at. File 10060-74:2, Sec. Nan, 

June 19, 1916. 

6. Indian, American. See Indians, 4. 

7. Retirement. See File 26256-413:2, Sec. Navy, Julv 14, 1916. 

8. Title of officers. See File 13707-21, J. A. G., Nov. 8, 1912. 

MEDICAL TREATMENT. 

1. Families of officers. See Families; Medical Attendance, 1. 

2. Prophylactic treatment. See Prophylactic Treatment. 

3. Refusal to submit to. See Surgical Operations, 3, 6. 

MEDICINE AND SURGERY, BUREAU OF. See Bureau of Medicine and Surgery. 

MEMBERS OF COURTS-MARTIAL. 

1. Absent — Not attending court by virtue of written permission of president of general 

court-martial— A certain officer of the Navy did not sit as a member of the court 
although the precept under which the court was constituted ordered him to duty 
thereon. 

He appears to have been absent by virtue of a letter addressed to him on the date 
of trial and signed by the president of the court, in which it is stated, in part: "You 
are hereby authorized to absent yourself from the court-martial meeting aboard this 
vessel to-day to try the case of * * *, coal passer, United States Navy." 

It is specifically provided in article 1703 (1), United States Navy Regulations [Navy 
Regulations, 1913, R-704 (l)],that an officer detailed for duty on a general court-martial 
or court of inquiry is, while so serving, exempt from other duty, except in cases of 
emergency, to be judged of by his commanding officer, who shall, in case he requires 
such officer to perform other duty, at once communicate with the convening authority 
assigning the reasons for his action. 

A member or judge advocate becomes or is relieved as such only by order of a lawful 
convening authority. (Forms of Procedure, 1910, p. 18.) 

The president of the court was therefore without any authority in relieving this 
officer from duty to which he had been assigned by superior authority. 

However, in view of the fact that six members remained on the court and the court 
was not reduced below the legal requirement, the foregoing irregularity was not 
deemed of sufficient importance to invalidate the proceedings. C. M. O. 30, 1910, 7. 
See also Members of Courts-Martial, 12. 

2. Same— "No explanation can be offered, he having been detached from this station" — 

In reviewing the record of proceedings of a general court-martial it was observed 
that one of the members of the court was not present, the record stating "No explana- 
tion can be offered, he having been detached from this station June 11, 1912." 

The detachment of an officer from his ship or station does not, of itself, relieve him 
from duty as a member or judge advocate of a general court-martial; specific orders 
for such relief are necessary. (Navy Regulations, 1913, 727 (3); Forms of Procedure 
1910, p. 19; A. G. N. 46.) The foregoing also appeared in the precept. 

In case of an order from a superior officer, the provisions of Navy Regulations 
[Navy Regulations, 1913, R-1513 (2)] shall be complied with. The report of circum- 
stances shall be forwarded by the member receiving such order to the convening 
authority through the president of the court, and a copy of such report shall be at- 
tached to the record of each case to which it applies. (Navy Regulations, 1913, 
R-727 (2); Forms of Procedure, 1910, p. 19.) Undoubtedly, it was the duty of the 
absent member to have furnished the report required in this case, but when he failed 
to do so the president of the court should have addressed to him a request for the 
necessary report. (Navy Regulations, 1909, R-207 [Navy Regulations, 1913, R-1501]. ) 
Provided the absent member had no order from a superior officer suspending or 
modifying his orders from the convening authority as contained in the precept, what- 
ever statement he had to make in the premises should have been obtained and for- 
warded by the president of the court to the convening authoritv and a copy thereof 
attached to the record. C. M. O. 23, 1912, 5. See also Orders, 3 : 42, 43, 44. 

3. Same— In case a member is sick he shall, if able, request the attendmg medical officer 

to report the fact of his sickness to the convening authority and such request shall 
be complied with. The report shall be forwarded through the president of the court, 
and a copy thereof shall be attached to the record of each case to which it applies. 
When the member is able to resume his duties, the attending medical officer shall re- 
port such fact in the same manner as above provided. (R-727 (4)). 



MEMBEKS OF COURTS-MARTIAL. 377 

In a case where the above report was not appended to the record, the record of 
proceedings was returned and the court in revision appended the necessary certifi- 
cate. C. M. O. 98, 1893. 

4. Same — Absence of president of a general court-martial on leave of absence without 

knowledge or permission of convening authority. File 28025-417:4. 

5. Same — No member of a general court-martial shall, after the proceedings are begun, 

absent himself therefrom, except in case of sickness, or of an order to go on duty from 
a superior officer, on pain of being cashiered. (A. G. N. 4G.) See Court, 170; Mem- 
bees op Courts-Martial, 2. 

6. Same — A court-martial has no authority to excuse any of its members from sitting 

in a case except upon challenge duly made and sustained by the court. C. M. 0. 127, 
1900, 1. See also Challenges, 1. 

7. Abuse of Power— Although the members of a duly constituted and organized court- 

martial can not be dictated to or interfered with in their proceedings by the highest 
military authority, yet they are collectively and individually responsible in civil 
courts for abuse of power or illegal proceedings. (R-722. ) See also Spalding v. Vilas, 
181 U. S. 483; Bradley v. Fisher, 13 Wall. 335; Dynes v. Hoover, 20 How. 65; Johuson v. 
Duncan, 6 Am. Dec. 679, 3 Martin (La.) 530; Appeals, 8; Counsel, 29, 36; Habeas 
Corpus, 17; Revision, 24. 

8. Accused as witness— A member should not in general object to a question the answer 

to which would incriminate accused. C. M. O. 49, 1910, 9; 8, 1913, 5. 

9. Additional member. C. M. O. 34, 1901, 2. 

10. Appeals — By member of general court-martial from criticism of convening authority. 

See Criticism of Courts-Martial, 35. 

11. Same — By members of summary court-martial from criticism of senior officer present. 

See Criticism op Courts-Martial, 36. 

12. Authentication— The omission of one signature of the members of the court to the 

findings and sentence will have no effect provided a legal quorum remained and 
signed. G. C. M. Rec. 24534. See also Court, 175; Members of Courts-Martial, 1. 
A member may be ordered to sign the findings and sentence. See Members of 
Courts-Martial, 48. 

13. Binding of records— Responsibility of members. See Binding of Court-Martial 

Records. 

14. Challenges. See Challenges. 

15. Civil liability. See Habeas Corpus, 17; Members of Courts-Martial, 7. 

16. Convening authority— Should not detail himself as a member. See Court, 36. 

17. Clemency — Recommendations to clemency should be made by members, not court. 

See Clemency, 35; Court, 19. 
IS. Competency as witnesses. See Members of Courts-Martial, 54-56. 

19. Criminating questions — Not function of member to object to witness being asked 

criminating questions. C. M. 0. 49, 1910, 9; 8, 1913, 5. Seealso Self-Incrimination, 16. 

20. Conduct of the proceedings— Members of the court are responsible for the dignified, 

orderly, and legal conduct of the proceedings of the court. C. M. O. 49, 1915, 10. 

21. Court-martial order— Names published in. C. M. O. 38, 1915, 3. 

22. Same— Members should consult, study, etc. See Court-Martial Orders, 17, 18. 

23. Criticism by convening authority and department. See Criticism of Courts- 

Martial. 

24. Death of member before signing record— In a case where a member of a summary 

court-martial died before signing the record, the department held, that the death of 
one of the members of a summary court-martial after sentence had been imposed, 
but before he had appended his signature to the sentence as required by law and 
regulations, does not render the sentence void. It is sufficiently authenticated if 
attested by the other members of the court-martial. Accordingly the record in such 
a case should be authenticated by the signatures of the other members of the sum- 
mary court-martial and forwarded to the department in accordance with Navy Resru- 
lations, 1913, R-34, R-624 (1). File 26287-2817, Sec. Navy, Mar. 2, 1915, citins; 23 Op. 
Atty. Gen. 550. C. M. O. 12, 1915, 8. 

25. Duty— Court-martial duty same as any other— The fact that an officer serv ing as member 

of a court-martial is individually as responsible for the performance of that duty as 
of any other duty with which he is charged is not open to question. File 25675-9-MM 1 . 
Sec. Navy, Oct. 28, 1915, p. 5. See also Court. 170. 

A member swears to "well and truly try, without prejudice or partiality, the case 
now depending, according to the evidence which shall come before (he court' * * *," 
and if he allows his vote to be controllod by facts known to himself or communicated 



378 MEMBERS OF COURTS-MARTIAL. 

to him by another member, but not in evidence, or by his personal notions, prejudices 
or feelings, he is chargeable with a grave dereliction of duty. C. M. O. 4,1913, 59. 

In determining the questions of fact the members of the court must arrive at their 
conclusions solely from the evidence that is adduced or comes before the court and 
not from any knowledge or information otherwise acquired. In exercising this part 
of its function a court is assisted by a knowledge and application of the rules of evi- 
dence, but no considerable knowledge of the law is required. It is to this duty of 
deducing the facts from a consideration of the evidence that the part of the oath 
administered to members requiring them to try a case "according to their own eon- 
sciences" refers. The facts having been found, it remains for the court to apply the 
law to them. The exercise of this function depends not on the consciences of the 
members but upon a knowledge of the law. A comprehensive knowledge of this 
subject is a profession in itself, and, while officers of the naval service are accountable 
for the information promulgated by court-martial orders and other official publica- 
tions, it is to be expected that cases will arise in which naval courts will require assist- 
ance in applying the more intricate provisions of law. Therefore, if by reason of a 
lack of knowledge of the law a court arrives at an incorrect rmding or unjustified 
sentence, there has been provided, in the interests of justice, a means of correcting 
such error. The department may return the record for further consideration, pointing 
out what the law is and how it should be applied. In such event the court is not 
justified in disregarding the law because an application of the same may reach a result 
at variance with the individual beliefs of a majority of its members. It is only right 
and just for the court to accept the law as laid down to it by proper authority and then 
to come to its findings and sentence anew accordingly. C. M. O. 25, 1916, 4. 

26. Exception — Should not be entered on record by members. See Exceptions, 2. 

27. Excusing members from attending court. See Members of Courts-Martial, 6. 

28. Findings and sentence— Quorum has to sign. See Members of Courts-Martial, 

12, 48. 

29. Forms of procedure— Members of courts-martial required to conform to, and to 

follow strictly the Forms of Procedure by which they are governed. See Court, 90. 

30. Incompetent — A member oppointed after case tried and completed is not qualified 

to sit in revision. See Members of Courts-Martial, 44. 

31. Jurors— Capacity of members as. See Court, 306; Jurors, 1. 

32. Legal liability. Sec Counsel, 36; Habeas Corpus, 17; Members of Courts- 

Martial, 7; Revision, 24. 

33. 3Jew members. C. M. O. 74, 1899, 2; 53, 1901, 1. See also Members of Courts- 

Martial, 44. 

34. Oaths. See Oaths. 

35. Objections. See Court, 121; Members of Courts-Martial, 52: Objections. 

36. Orders— To dutv as members of courts-martial. See Convening Authority, 32; 

Court, 33-51; Summary Courts-Martial, 48, 61. 

37. Same — An order issued by the Secretary of the Navy relieving an officer from duty at 

a particular station, will be assumed'as intended to relieve such officer from duty 
as a member of a general court-martial of which the Secretary of the Navy is the 
convening authority. C. M. O. 125, 1900, 1. 

38. Protest— Improper to enter on record. See Exceptions, 2. 

39. Qualifications— An officer of the Navy is presumed to be qualified by education and 

experience to serve as a member of a court-martial; it is also presumed that he has in- 
formed the lawful authority of any material facts which might disqualify him and 
that it has rightfully found him to be qualified. The practice of interrogating jurors 
on their voir dire applies to persons whose fitness for service is not established, prima 
facia, by similar presumptions. The department held that for the above reasons 
the accused can not challenge members of court for prejudice unless he has informa- 
tion warranting a charge of prejudice. C. M. O. 128, 1905. 

That an officer discharging the high functions resting upon a member of a general 
court-martial will disregard the obligations of his oath and duty, can not be accepted 
as a matter of assumption, but must be positively and affirmatively shown if it is to 
be established. As members of courts-martial, officers are independent of higher 
authority, certainly in the exercise of their judicial functions, and the recent history 
of courts-martial shows that officers generally fully understand and appreciate their 
independence while in the discharge of those duties. Instances are not uncommon 
where courts, after having been instructed by the convening authority (the commander 
in chief or the department) to reconvene for the purpose of reconsidering a sentence 
deemed inappropriate or inadeauate, have, notwithstanding such expression by 
higher authority, adhered to their action. 13 J. A. G., 325, June 11, 1904. 



MEMBERS OF COURTS-MARTIAL. 379 

40. Questions— All questions originating with members, and which have been received, 

are recorded as "by the court," but when made the subject of discussion and rejected 
they are recorded as "by a member." C. M. O. 17, 1910, 7; 19, 1915, 3. See also 
Witnesses, 40. 

41. Record of proceedings. See Record op Proceedings. 

42. Reports on fitness — Summary court-martial members' protest against entry as to 

manner of performing duty. See Reports on Fitness, 3. 

43. Responsibility for abuse of power. See Counsel, 36; Habeas Corpus, 17; Mem- 

bers of Courts-Martial, 7; Revision, 24. 

44. Revision — An officer who was not a member of the general court-martial which tried 

the accused, but subsequently was appointed to such, renders the proceedings in 
revision illegal if he sits upon the court during the proceedings in revision. C. M. O . 
47, 1910, 10. See also Revision, 22. 

45. Seating — Should be seated in the order in which their names appear in the precept. 

File 26504-192, Sec. Navy, Oct. 28, 1913. 

46. Suit for damages. See Counsel, 36; Habeas Corpus, 17; Members of Courts- 

Martial, 7; Revision, 24. 

47. Service on courts-martial— Duty of the highest order. See Court, 170; Members 

of Courts-Martial, 25. 

48. Signing record of proceedings — An officer, a member, who fails to sign the record 
■ of proceedings of a summary court-martial, may be ordered to do so by the convening 

authority, as the signature required by A. G. N. 52 is for the purpose of authentica- 
tion and does not necessarily import unanimous concurrence in rulings, findings, 
decisions, and other action taken. File 1434-04, J. A. G. 

49. Title— Wrong title in precept does not invalidate. See Challenges, 15. 

50. Vote, revealing. See Oaths, 47. 

51. Witnesses— Examination of, by members— Scope of. See Witnesses, 40-42. 

52. Witness, as — Resuming status to consider objections — While a member of the court 

was testifying counsel for the accused entered an objection to a question (Rec. p. 3), 
and the witness resumed his status as member to deliberate upon the objection. 
Since the court consisted of only five members this action was proper. If, however, 
there had been present five or more members in addition to the member who was 
testifying, the department holds that such member should be excluded from deliber- 
ation upon the objection as a matter of propriety. C. M. O. 49, 1915, 15; overruling 
C. M. O. 14, 1911, 4. See also Members of Courts-Martial, 55. 

53. Same — Not to be shown as warned or withdrawing. The record shall state that he 

resumed his seat. C. M. O. 15, 1910, 5; 26, 1910, 8; 31, 1910, 3. 

54. Same — While not illegal, it is considered inadvisable to have among the members 

constituting a court-martial officers who appear as principal witnesses for the prose- 
cution, as was done in this case. Whenever the exigencies of the service will permit, 
a court should as far as possible be composed of officers who are not cognizant of 
detailed circumstances attendant upon offenses for which an accused may be brought 
to trial. (See Navy Regulations, 1913, R-702 (2); G. C. M. Rec. No. 25157.) G. C. M. 
Rec. 31874; C. M. O. 9, 1916, 8. 

55. Same — As to the competency of members of courts-martial to act as witnesses, it is, 

in general, well recognized that they are so competent. 

The president or any member of a court-martial, as also the judge advocate, may 
legally give testimony before the court. That the court, at the time of a member '*s 
testifying, is composed of but five members will not affect the validity of the pro- 
ceedings, since in so testifying he does not cease to be a member. It is in general, 
however, most undesirable that the judge advocate, and still more that a member, 
should appear in the capacity of a witness, except perhaps where the evidence to 
be given relates simply to the good character or record of the accused. 

While it is in general undesirable that a member of a military court should testify 
as a witness at a trial had before such court, unless perhaps his testimony relates to 
character merely, yet the fact that he is called upon to testify, while it does not affeot 
the validity of the proceedings, does not operate to debar the member himself from 
the exercise of any of the duties or rights mcident to his membership. He remains 
entitled to take part in all deliberations, including indeed those had in regard to the 
admissibility of questions put to himself or of his answers to questions. (See Army 
Digest, 1901.) C. M. 0. 14, 1911, 4. See also Members of Courts-Martial, 52. 



380 MEMBERS OF COURTS-MARTIAL. 

56. Same— Members of naval courts-martial may testify as witnesses in a case and then 

resume their seats as members. (Navy Regulations, 1913, R-7S2.) 

The procedure of a member of a court-martial testifying as a witness has been 
sustained by the Supreme Court of the United States as well as by the Court of Claims 
and the Attorney General; it has been judicially upheld in many of the States as well 
as being expressly authorized by statute in at least one State. It has been practiced 
and upheld in the highest court of England. It has been announced by allthe best 
military authorities, both American and English, from the earliest times, and its le- 
gality is expressly upheld by Greenleaf on Evidence, 16th edition, 456, as well as by 
many other authorities. Under the settled law of evidence members of a jury are 
competent witnesses in a criminal case on trial before them, and it has been held* that 
"the analogy of a court -martial is that of a jury in the trial of a civil case, the ap- 
proving power in the former occupving the relation of the judge in the latter." 
(6 Op. Attv. Gen. 206.) File 26251-0320:11. Sec. Navy, Julv 7, 1913. See also G. C. M. 
Rec. 25157; Keyes v. U. S., 15 Ct. Cls. 533, affirmed, 109 L . S. 330: 15 Op. Atty. Gen. 431. 

57. Witnesses examined in absence of members— Whenever any member of a court- 

martial, from any legal cause, is absent from the court after the commencement of 
a case, all the witnesses who have been examined during his absence must, when he 
is ready to resume his seat, be recalled by the court, and the recorded testimony of 
each witness so examined must be read over to him, and such witness must acknowl- 
edge the same to be correct and be subject to such further examination as the said 
member may require. Without a compliance with this rule, and an entry thereof 
upon the record, a member who shall have been absent during the examination of a 
witness shall not be allowed to sit again in that particular case. (A. G. N. 47.) 

These requirements are, in both letter and spirit, applicable to the case of an officer 
taking his seat as a member of a court during the progress of the trial, as well as to 
that of one temporarily absent after the proceedings have commenced. Their pur- 
pose is to place the new member in substantially the same attitude as other members 
of the court with respect to the testimonv adduced, and unless this be done, he is 
not qualified to act. C. M. O. 74, 1899, 2.* See also C. M. O. 53, 1901, 1. 

MEMBERS OF BOARDS. See Boards, 2; Precedence, 10. 

MEMORY. 

1. Lapse of — As a defense in "Fraudulent enlistment."' See Fraudulent Enlistment, 

23. 

2. Leading questions — To aid a defective memorv. See Leading Questions. 5, 15. 

3. Refreshing memory— Of witnesses. See Counsel. 50 : Judge Advocate, 129; Wit- 

nesses, 9-5-99. 

MENTAL IRRESPONSIBILITY. See Insanity. 27. 

MERCHANT VESSELS. 

1. Collision— Enlisted man disappeared. Sec Collision, 13; Llne op Duty and Mis- 

conduct Construed. 29. 

2. Crews — Status of merchant crews in time of war. File 5194-9, J. A. G., May 22, 1913. 

3. Officer as expert witness — The Navy Department has no objection to a certain retired 

officer testifying "as an expert witness in the case of the collision between two steam- 
ships in the Savannah River, neither of said steamships being Government vessels." 
File 26276-125, Sec. Navy, Nov. 22, 1915. 

4. Officer serving as a member of board, of survey for Lloyds— An officer acted as a 

member of a Lloyds board of survey on a merchant vessel. He received a S25 check, 
which he deposited with the paymaster and requested a decision of the department 
as to his right to retain the check. Held, Officers of the Navy may not "without 
permission of the Executive" claim fees for services rendered by them on "the time 
of the United States," and because of their character as such officers, as members 
of boards of survey on merchant steamers whether of American or foreign registry. 
The department is authorized to grant or deny permission to this officer to accept 
this fee. (Sfe 7 Op. Atty. Gen. 756.) File 27601-116-2, J. A. G.. May 17, 1915. (Permis- 
sion was granted to accept the fee. Bu. Nav. File 41S9-95, June 5, 1915.) C. M. O. 
42, 1915, 10-11. See also File 5194-230, J. A. G., Aug. 24, 1916. 

MERRIMAC, U. S. S. 

1. Clemency— Extended because accused (enlisted man) had been a member of the crew 

of the U. S. S. Merrimac. C. M. O. 69, 1904, 2. See also Clemency, 62. 

2. Same— A chief boatswain was sentenced to "dismissal." The convening authority 

approved but in forwarding the record to the President recommended the sentence be 



MERRIMAC, U. S. S. 381 

mitigated to confinement for one year to the limits of his ship or station and to lose 
pay, in consideration of the " gallant conduct of the accused, then a coxswain, on board 
the U. S. S. Merrimac on June 3, 1898, when he was a member of the volunteer crew 
which sank that vessel in the entrance to the harbor of Santiago, Cuba." In view 
of this recommendation the recommended clemency was extended. CM. O. 32, 
1905. See also Clemency, 62. 

MESSES. 

1. Members of— Liability of members for debts contracted by a majority vote. File 

4824-1 and 2, 1906. 

2. Same— In a case where a wardroom mess steward had irregular dealings with certain 

firms the Bureau of Navigation in part stated: " Firms employ those methods prin- 
cipally because they feel that no matter what use such credit is put to, the threat to 
take the matter to higher authority usually leads to the payment of any claim. 'The 
principle is now at stake in this case as to the responsibility of the wardroom for 
unauthorized bills contracted in their name. Legal methods for determining this 
responsibility are at the disposal of this company, and I recommend that they be 
informed to that effect. The fact once firmly established that officers' messes are not 
responsible for unauthorized bills would lead to the elimination of irregularities on the 
parts of stewards and firms with whom they deal, which no amount of care can wholly 
eliminate." "It is a matter which should be adjusted between the parties directly 
concerned, with resort to the civil courts if necessary." File N-32/W, 1187-120, Bu. 
Nav., Apr. 12, 1916. 

"Ir they are of the opinion that they have a just claim, the same legal methods of 
obtaining judgment can be used against naval officers as against other citizens." 
File N-32/W, 1187-118, Bu. Nav., Feb. 8, 1916. 

MESS CATERER. See C. M. O. 98, 1894, 2. 

MESS COOK. 
1. Extra pay as — Not to be included in actual pay in court-martial sentence. C. M. O. 
24, 1909, 3. 

MESSMEN. 

1. Naval Reserve. See Naval Reserve, 3. 

MESTIZO. See C. M. O. 49, 1915, 23. 

METEOROLOGIST. 

1. Retired naval officer— Assigned to active duty. While serving and receiving pay for 
active duty he was appointed by the Secretary of the Navy "meteorologist" at the 
Mare Island Navy Yard. File 9736-18, J. A. G., June 25, 1910, p. 13. 

MIDDLE NAMES IN SPECIFICATIONS. See Charges and Specifications, 60. 

MIDSHIPMEN. 

1. "Absence from station and duty without leave"— Midshipmen tried by general 

court-martial. C. M. O. 77; 1905. 

2. Academic Board. See Academic Board of the Naval Academy. 

3. Age limit — Executive is without authority to waive the age limit, as the age of candi- 

dates for admission is fixed by law. File 5252-43:1, J. A. G., May 7, 1913. 

4. Same— As to constitutionality of special legislation, see 18 Op. Atty. Gen. 18; Messages 

and Papers of the President, vol. 8, p. 221. File 5252-73, J. A. G., Oct. 1, 1915, pi" 4. 

5. Same — An appointee is none the less a "candidate for admission" subject to exami- 

nation, because he has already been a member or inmate of the Naval Academy, 
and subject to age limit. File 5252-43:1, J. A. G., May 7, 1913. See also Midshipmen, 
70. 

6. Same — Legal residence and age— Section 1517, R. S., as amended by act March 2, 

1899 (25 Stat. 879) requires that a candidate for appointment to the Naval Academy 
be an actual resident of the district from which nominated, and must be between 
the ages of 15 and 20 when examined for promotion. 

The department leaves such matters as the actual residence of the candidate to 
the Representative appointing him and, the candidate having once been appointed 
and become a midshipman, the question of residence is regarded practically as res 
judicata. 



382 MIDSHIPMEN. 

As a matter of policy, the department should not reopen the matter in a case where 
the candidate's eligibility is attacked after he has otherwise qualified and been ap- 
pointed to the Naval Academy. 

If the matter was decided during a "previous administration" it will not properly 
be reopened under the doctrine of res judicata. File 5252-32, J. A. G., Jan. 26, 1910. 
See also File 26543-87:2, Sec. Navy, Apr. 28, 1913, p. 3, citing 28 Op. Atty. Gen., 180. 

7. Agreement and oath — Signed by midshipmen appointed to Naval Academy. File 

5252-77, J. A. G., July 20, 1915. 

8. Aliens — Appointment of— There is no statute specifically making citizenship a con- 

dition precedent to eligibility to appointment to the Naval Academy as a midship- 
man, but inasmuch as officers of the Navy must be citizens, a midshipman can not be 
commissioned an ensign if he be an alien. (File 26252-71, Nov. 1, 1907). The above 
decision of the department was cited with approval in a recent case. While the stat- 
utes do not specifically prohibit the appointment of an alien to the Naval Academy, 
such prohibition is purely an administrative question which it is competent to handle 
in the Navy Regulations, and it was therefore recommended that the regulations be 
so amended as to prohibit the appointment to the Naval Academv of any except 
citizens of the United States. File 5252-68, J. A. G., May 15, 1915. See also File 
26252-71, Sec. Naw, Nov. 26, 1912; 26252-71:1, J. A. G., Mar. 22, 1913; 8879-03, J. A. G., 
Oct. 19, 1903; Res Judicata, 10. 

9. Same— Admission to Naval Academy of students from foreign States. See Midship- 

men, 8. 
"-10. Allowances — Suspension of. See Mid shipmen 62. 

11. Appointments of— Under the law, appointments to the Naval Academy are allowed 

for the office of Senator, Representative and Delegate in Congress, and not for the 
individual holding such office. Accordingly, if a Senator representing a State, or a 
Member of Congress representing a congressional district has two appointments to 
the Naval Academy made on his recommendation, his successor can not, while such 
appointees are at the Academy, be allowed two additional appointments made to 
the Academy on his recommendation. The foregoing opinion is fully supported by 
the long continued departmental construction of the law, which is known to Congress 
and which should be accepted as conclusive. (Brown v. U. S., 113 U. S. 568). The 
right of Representatives in Congress to have appointments made upon their recom- 
mendations has been denied even where it was contended that the midshromen at the 
Academy appointed by their predecessors were not bona fide residents of the district 
from which appointed'(28 Op. Atty. Gen. ISO) or where a Member who had appointed 
a midshipman was later unseated bv contest of election. (21 Op. Atty. Gen. 342. See 
also 10 Op. Atty. Gen. 46.) File 5252-67: 1, J. A. G ., July 12, 1915; C. M. O. 27, 1915, 8. 
See also File 5252-67, J. A. G., May 3, 1915, with reference to appointment by Members 
of Congress at Large. 

12. Same— Aliens. See Midshipmen, 8. 

13. Same— Bo vs enlisted in Naw. See File 5252-59, J. A. G., Feb. 6, 1914. 

14. Same— Enlisted men— R. S. 1513, as amended by act, March 3, 1903 (32 Stat. 1197), 

and act, June 30, 1914 (38 Stat. 410). C. M. O. 31, 1915, 2. Enlisted men of Marine 
Corps under act, June 30, 1914 (38 Stat. 410). See Midshipmen, 52. 

15. Same— Influence. See Congress, 11; Naval Academy, 12. 

16. Same— Marine Corps. See Midshtpmen, 52. 

17. Arrest, under— Status of— Under a regulation of the Naval Academy providing that 

" Th e commandant of midshipmen will prescribe in each case the nature of restrictions 
to be imposed upon the midshipmen placed under suspension to await investigation 
or action," (Regulations of the U. S. Naval Academy, 1911, p. 116, article 5S3, as 
amended) a midshipman may properly be placed under arrest pending action on a 
recommendation by the Superintendent of the Naval Academy for his dismissal. 
The fact that a court of inquiry may be ordered to investigate the allegations against 
him does not of itself require his being released from arrest. To release him from 
arrest because the court of inquiry was investigating allegations against him, which 
were the basis for recommending'his dismissal, would retract the above regulation, 
which has been approved by the department, and exert a very pernicious influence 
upon the discipline at the Naval Academy. File 2S028-203: 1, Sec. Navy, June 8, 1915, 
and J. A. G., June 7, 1915; C. M. O. 22, 1915, 9. 

18. Assignment— Midshipmen on graduation shall be commissioned ensigns in the Navy, 

or mav be assismed by the Secretary of the Navy to fill vacancies in the lowest com- 
missioned grades of the Marine Corps or Staff Corps of the Navy. (Act July 9, 1913, 
38 Stat. 103.) File 5252-60, J. A. G., May 13, 1915, p. 1. 



MIDSHIPMEN. 383 

19. Board of Investigation— Investigated irregularities of a midshipman, who was 

represented by counsel of his own choosing. File 5252-73, Oct. 2, 1915. 

20. Boys enlisted in Navy. See Midshipmen, 13. 

21. " Breaking arrest "—Midshipman charged with. See Breaking Aeeest, 6. 

22. Cheating — A midshipman having taken final examination as midshipman, turned. 

in his papers but subsequently in an unauthorized and surreptitious manner secured 
access to the papers and made changes in answers to certain questions. Was marked 
zero on these subjects and when tried by court-martial for "scandalous conduct 
tending to the destruction of good morals," pleaded that he had already been punished 
by the action of the Academic Board in marking, and the court sustained that plea. 
The Secretary of the Navy stated that the accused must be punished in accord with 
the action of the Academic Board or go altogether unpunished, and as such conduct 
should not go unpimished, "his resignation will be, therefore, accepted." 13 J. A. 
G. 457, Aug. 18, 1905. See also Blottee; Gouging, 3; Officees, 13. 

23. Citizenship of. See Midshipmen, 8. 

24. "Conduct to the prejudice of good order and discipline"— Charged with. C. 

M. O. 77, 1905. 

25. "Conduct unbecoming an officer and a gentleman"— Charged with. C. M. O. 

9, 1909; 7, 1912; 8, 1912. 

26. Court of inquiry— Convened to investigate alleged irregularities. See Courts of 

INQUTEY, 33. 

27. "Court-Martial" — A midshipman, member of the third class at the United States 

Naval Academy, was tried by a "court-martial" on the charge of "Hazing, in viola- 
tion of an act of Congress approved June 23, 1874," under which were six specifica- 
tions. The proceedings, findings, and recommendation of the "court-martial " were 
approved by the Superintendent of the Naval Academy, who convened the "court- 
martial." The midshipman was dismissed "from the U. S. Naval Academy and the 
naval service." 

The case went to the Court of Claims, the midshipman contending that the act 
of June 23, 1874 (18 Stat. 203) was incompatible with, or repealed by, subsequent 
acts of Congress approved March 2, 1895 (28 Stat. 838) and March 3, 1903 (32 Stat. 
1198) respectively. Held: That the act of June 23, 1874 (18 Stat. 203) was not repealed 
by the later statutes. File 4051-3, J. A. G., July 1, 1909. See also Melvin v. IT. S., 
Ct. Cls., No. 30095; 25 Op. Atty. Gen. 543. 

The act of June 23, 1874 (18 Stat. 203) provides that a midshipman may be tried 
by a "court-martial," composed of "not less than three commissioned officers," 
and any midshipman found guilty of "Hazing" by such a "court-martial" shall be 
dismissed; "and such finding, when approved by said. superintendent shall be final." 

31. Dismissal— May not be dismissed for a "single" act of hazing without trial by "court- 

martial." See Hazing, 6. 

32. Same— As a midshipman is neither a commissioned nor warrant officer it seems that 

he may be dismissed pursuant to a sentence of a court-martial without the express 
approval thereof by the President, unless there be some explicit statutory provision 
requiring such executory approval. The act of April 9, 1906 (34 Stat. 104) required 
the approval of the President for the dismissal of a midshipman from the Naval 
Academy whenever the continued presence of a midshipman at the Naval Academv 
is contrary to the best interests of the service. 16 J. A. G. 65, Nov. 2, 1911 ; File 26262- 
198, J. A. G., Nov. 13, 1908. See also C. M. O. 77, 1905; 9, 1909; 10, 1909; 36, 1909, 2. 

33. Same— Power of Secretary of the Navy to dismiss. See Midshipmen, 80. 

34. Same— Form letter for dismissing midshipmen. See File 26283-925, Sept. 18, 1915. 

35. Same— "That it shall be the duty of the Superintendent of the United States Naval 

Academy, whenever he shall believe the continued presence of any midshipman a I 
the said academy to be contrary to the best interests of the service, to* report in writ Ing 
such fact, with a full statement of the facts upon which are based his reasons for such 
belief, to the Secretary of the Navy, who, if after due consideration of the said report 
he shall deem the superintendent's said belief reasonable and well founded, shall 
cause a copy of the said report to be served upon the said midshipman and require 
the said midshipman to show cause, in writing and within such time as the said 
Secretary shall deem reasonable, why he should not be dismissed from the said 
academy; and after due consideration of any cause so shown the said Secretary may. 
in his discretion, but with the written approval of the President, dismiss such mid- 
shipman from the said academy. And the truth of any issue of fact so raised, except 
upon the record of domerit, shall be determined by a board of inquiry convened by 
the Secretary of the Navy under the rules and regulations for the government of the 
Navy." (Act, April 9, 1906, 34 Slat. 104, sec. 1). * File 5252-73, J. A. G., Oct 1, 1915. 

50756°— 17 25 



384 MIDSHIPMEN. 

36. Dismissed midshipmen— Question as to whether a dismissed midshipman may hold 

a State office is not under jurisdiction of Navy Department. File 52.52-79, J. A. G., 
June 19, 1916. 

37. Same — It is understood that under the civil service rules and regulations any person 

who has been dismissed from the military or naval service is barred from examination 
for the United States civil service within one year from the date of such dismissal. 
File 5252-79, J. A. G., June 19, 1916. 

38. Same — Dismissal of midshipman, when once accomplished, is final and can not be re- 

voked. It has been deemed necessary in the past to obtain special authority of 
Congress for the reinstatement of midshipmen who have been legally dismissed. 
(See File 1897-1904, Sec. Navy, Mar. 21, 1904; act, Mar. 3, 1905, 35 Stat. 1263). Thus 
it will be seen that not only have the courts, the Department of Justice, and the 
Navy Department concurred in the conclusion that reinstatement can not be effected 
by revocation, but that this view has received the concurrence of Congress and the 
President with reference to specific cases of midshipmen. File 5252-73, J. A. G., 
Oct. 1, 1915. See also Midshipmen, 75; 25 Op. Atty. Gen. 579; File 5252-60, J. A. G., 
Feb. 2, 1914. 

39. Same — Not for hazing nor pursuant to sentence of court-martial but in accordance with 

section 1, act, April 9, 1906 (34 Stat. 104) — No law prohibiting his appointment as 
an officer of the Navy. The question as to whether he is ineligible to hold a com- 
mission in the Armv is one for determination of the War Department. File 20283- 
925: 4, J. A. G., Aug. 7, 1916. 

40. ** Drunkenness "—Midshipmen charged with. CM. O. 77, 1905. 

41. Enlisted men ot Navy— Appointment as midshipmen. See Midshipmen, 14. 

42. Enlisted men of Marine Corps — Appointment as midshipmen. See Midshipmen, 52. 

43. Expelled, summarily— Any midshipman summarily expelled from the Naval 

Academy for hazing shall not thereafter be reappointed or be eligible for appoint- 
ment as a commissioned officer in the Army, Navy, or Marine Corps, until two years 
after the graduation of the class of which he was a member. File 5252-79, J. A. G., 
June 19, 1916. See also Marine Corps, 54. 

44. Foreigners — Admission to Naval Academy of foreigners. See Midshipmen, 8. 

45. Form letter— For dismissing midshipmen. See File 26283-925, Sept. 28, 1915. 

46. General court-martial— Midshipmen tried by. C. M. O. 77, 1905; 9, 1909; 10, 1909; 

36, 1909, 2; 12, 1913, 3. 

47. Gouging. See Midshipmen, 22. 

48. Hazing. See Hazing. 

49. Legal residence. See Midshipmen, 6. 

50. Letter— Form letter for dismissing midshipmen. See File 26283-925, Sept. 28, 1915. 

51. Longevity— Service at Naval Academy counts. See Longevity. 

52. Marine Corps— Enlisted men of the Marine Corps may be appointed to the Naval 

Academy in the discretion of the Secretary of the Navy, under the authority conferred 
by the act of June 30, 1914, (38 Stat. 410; G. O. 124, Oct. 19, 1914) which authorizes 
such appointments from "enlisted men of the Navy." File 5252-66, Sec. Navy, 
May 13, 1915; C. M. O. 20, 1915, 7. 

53. Same — Two midshipmen, graduates of the Naval Academy, having since resigned from 

the naval service, sought appointments as second lieutenants in the Marine Corps. 
Held, that their status was the same as any other civilian and that they would be 
required to take the ordinaiy entrance examination for the commission as second 
lieutenant. The only benefit which they receive is that the service in the Naval 
Academy would be counted in determining the amount of their longevity pay. 
File 13261-335, J. A. G., June 6, 1911. See also File 13261-486, Sec. Navy, June 8, 1916. 

54. Same— Precedence when appointed to Marine Corps. See Midshipmen, 66". 

55. Same— The provision of the act of March 3, 1899 (30 Stat. 1008) for at least one ap- 

pointment to the Marine Corps, annually from graduates of the Naval Academy is 
still in force although not observed for a number of years. 15 J. A. G. 135, April 4, 1911. 

56. Naturalization. See Midshipmen, 8. 

57. Oath— And agreement— Signed by midshipmen appointed to Naval Academy. File 

5252-77, J. A. G v July 20, 1915. 

58. Officer— A midshipman is not an officer within the meaning of R. S. 1229, providing 

that no officer in the military or naval service shall, in time of peace, be dismissed from 
the service except upon and in pursuance of the sentence of a court-martial. File 
26262-198. 

59. Same— Midshipmen are "officers" within the meaning of R. S. 1486. File 11130-2b, 

J. A. G., July 31, 19JJ. See also File 52.52-73, J. A. G., Oct. 1, 1915. 



MIDSHIPMEN. 385 

60. Pardon— Of dismissed midshipman by President where dismissal has not been con- 

summated. See File 5252-73, J. A. G., Oct. 1, 1915, pp. 4-5; Op. Acting Atty. Gen., 
Aug. 14, 1888, Exec. Press Copy Book, Navy Dept. No. 7, p. 245. 

61. Pay— Congress provided in 1893 that any midshipman commissioned within six months 

after graduation should be paid "from the date he takes rank as stated in his com- 
mission to the date of qualification and acceptance of his commission." (Act Mar. 3, 
1893, 27 Stat. 715.) File 5460-76, J. A. G., July 12, 1915. See also File 13261-486, Sec. 
Navy, June 8, 1916. 

62. Pay— Suspension without pay for due cause by Secretary of the Navy— Where it is 

within the power of the Secretary of the Navy, with approval of the President, to 
dismiss a midshipman, he may, with the approval of the President, suspend a mis- 
shipman for one year, without pay for due cause. Since the power to suspend is 
derived from the power to dismiss absolutely, only such midshipmen as may be 
subject to dismissal can be so suspended. File 5252-72, J. A. G., Sept. 20, 21, 1915. 
[In this case comptroller held that midshipman suspended without pay was not en- 
titled to allowances. (177 S. and A. Memo., 3830.)]. C. M. O. 31, 1915, 12. 

63. Physical disqualification— For commission as ensign— Waiver. File 5252-50, J. A. 

G., May 14, 1912. 

64. Physically incapacitated— Promotion. See Retirement of Officers, 50. 

65. Post graduate courses — Engagements entered into by midshipmen and candidates 

for postgraduate courses regarding future service in the Navy. File 5252-77, Sec. 
Navy, April 12, 1916. 
66 Precedence when appointed to Marine Corps— Graduates of the Naval Academy 
who are appointed second lieutenants in the Marine Corps should take rank with 
their classmates who are appointed ensigns in the Navy from the same date, in ac- 
cordance with their final standing upon graduation from the Naval Academy. File 
11130-27, J. A. G., Aus. 20, 1915; C. M. O. 29, 1915, 7. 

67. Precise designation of— In the case of a midshipman at the Naval Academy tried 

by general court-martial for "Hazing" the department stated: "The more precise 
designation of the rank of the accused would be 'Midshipman, United States Navy, 
member of the third class at the United States Naval Academy/ instead of 'a mid- 
shipman of the third class in the United States Navy.'" C. M. O. 12, 1913, 3. 

68. Promotion— When physically incapacitated for duty. See Retirement of Offi- 

cers, 50. 

69. Same — Effect of the recommendation of the Academic Board that a midshipman be 

dropped. See Academic Board of the Naval Academy, 4. 

70. Reappointment— There is no provision of law expressly prohibiting the reappoint- 

ment of a midshipman who has been dismissed from the Navy, except in the single 
case of hazing. However, the spirit of the law is against the reappointment of any 
person who has been dismissed from the Navy. File 5252-43, J. A. G., Oct. 5, 1911. 

71. Same— As to reappointment of midshipmen dismissed for hazing, see act Mar. 3, 1903 

(32 Stat. 1198), as amended by act Apr. 9, 1906 (34 Stat. 104). C. M. O. 31, 1915, 12. 

72. Same— A midshipman who has satisfactorily completed the course for the first, (or 

fourth-class) year at the Naval Academy, but who, in the following year, is found 
deficient and allowed to resign, need not be required, when given a new appointment, 
to go over the course for the fourth-class year a second time, but may legally rebegin 
the course for the third-class year provided that such action is recommended by the 
academic board. File 5252-65, J. A. G., Mar. 12, 1915; C. M. O. 12, 1915, 10. 

73. Same — A midshipman who has been dismissed from the Naval Academy for "intoxi- 

cation and inaptitude" and who had other reports on record against him, was given 
a new nomination. Held, that if the candidate's moral qualifications are not satis- 
factory and such as are required for the admission of candidates generally, he may 
be legally rejected, and whether or not he is so qualified is a question of fact. File 
5252-43, J. A. G., Oct. 5, 1911. 

74. Regulations of the U. S. Naval Academy, 1911— Tssued under authority of R. S. 

161— Midshipmen are subject to. J. A. G., June 7, 1915. 

75. Reinstatement— A midshipman, who has been dismissed for misconduct by order 

of the President pursuant to law, can not be legally reinstated in his former position 
by revocation of the order of dismissal. The only "way in which such a former mid- 
shipman can legally obtain readmission to the Naval Academy would be in the 
manner provided for any other candidate in civil life, as authorized by sections 1515, 
1516, and 1517 of the Revised Statutes, and by the act of Congress approved July 9. 



386 MIDSHIPMEN. 

1913 (38 Stat. 103). [See 25 Op. Atty. Gen. 579; Op. Atty. Gen. Oct. 15, 1915. See 
also with reference to appointments from enlisted men, R. S. 1513 as amended by act 
Mar. 3, 1903 (32 Stat. 1197), and act June 30, 1914 (38 Stat. 410). As to reappointment 
of midshipmen dismissed for hazing, see act Mar. 3, 1903 (32 Stat. 1198), as amended 
by act Apr. 9, 1906 (34 Stat. 104).] File 5252-72, J. A. G., Sept. 27, 1915; C. M. O. 31, 
1915, 12. See alsc Midshipmen, 38. 

76. Same — Can not be effected by revocation. See Midshipmen, 38; 75. 

77. Residence, Legal. See Midshipmen, 6. 

78. Rules governing admission— The pamphlet issued by the Bureau of Navigation 

entitled "Regulations Governing the Admission of Candidates into the U. S. Naval 
Academy as Midsnipmen" is of official character. File 5252-4, J. A. G., Oct. 5, 1911, 
p. 4. 

79. Sea duty— As part of the course at Naval Academy. See Naval Academy, 22. 

SO. Secretary of the Navy — Power of to dismiss— The Secretary of the Navy, with the 
written approval of the President, has the power to dismiss midshipmen for due 
cause in any case except that in which the cause consists in a "single act of hazing." 
In such cases the law expressly provides that a midshipman can be dismissed only 
pursuant to the sentence of a "court-martial" which the Superintendent of the Naval 
Academy, "in his discretion, and with the approval of the Secretarv of the Navy," has 
convened. (Acts of June 23, 1874, 18 Stat. 203, and Mar. 3, 1903, 32 Stat. 1198, as amend- 
ed by the act of Apr. 9, 1906, 34 Stat. 104.) A midshipman who is recommended 
for punishment for a "single act of hazing" is thus in the unique position, as com- 
pared with other offenses against Naval Academy Regulations of being protected by 
statute against dismissal, except by sentence of a "court-martial." File 5252-72, 
J. A. G., Sept. 20, 21, 1915; C. M. O. 31, 1915, 12. See also File 5252-60, J. A. G., Feb. 
2, 1914. 

81. Sentence— Unnecessary that President should confirm sentence of general court- 
martial involving the dismissal of a midshipman. See Midshipmen, 32. 

S2. "Single act of hazing"— By midshipmen. See Hazing, 6; Midshipmen, 31, 80. 

83. Status of — Midshipmen are classed as "being of the line" but are eligible for appoint- 

ment as second lieutenants in the Marine Corps, but this does not manifest the de- 
liberate intent of Congress that graduates of the Naval Academy are to be regarded 
as anything but midshipmen— much less that their status partakes at all of the nature 
of that of marine officers. They are also eligible, upon passing the required examina- 
tion, for appointment as assistant paymasters, but this is not indicative that their 
present status is changed. File 3980-629, J. A. G., July 13, 1911, p. 4. See also Pay- 
master's Clerks, 10. 

84. Statutory history — Of midshipmen and naval cadets. (See Weller v. U. S., 41 Ct. Cls., 

324.) File 26262-198, J. A. G., Nov. 13, 1908, p. 2; 16 J. A. G., 65, Nov. 2, 1911. 

85. Suicide— Midshipmen while suffering from acute nostalgia committed suicide. See 

Nostalgia. 

86. Suspension without pay — For due cause by the Secretary of the Navy. See Mid- 

shipmen, 62. 

87. Third classman — At Naval Academy tried by general court-martial for "hazing." 

See Midshipmen, 67. 

88. Trial by court-martial — Midshipmen are subject to trial by court-martial convened by 

order of the Secretary of the Navy. File 9687 and 9688, Jan., 1902; 9689, Feb., 1902; 
9690, Apr. 1902. 

89. Waning age limit. See Midshipmen, 3, 4, 5, 6. 

90. Warrant officer— Midshipman is not. 16 J. A. G., 70, Nov. 2, 1911. 

MIDWAY ISLAND. 

1. Jurisdiction— Of United States over. File 4679-04; 2479-3-07; Executive order of 
Jan. 20, 1903; G. O. 120, Jan. 21, 1903; File 11369-02; 754-03. 

MILEAGE. 

1. Abroad — Annual appropriations under "Pay, Miscellaneous," provide "for actual 

personal expenses of officers while traveling abroad under orders." File 13707-48, 
J. A. G., Aug. 2, 1915. See in this connection G. O. 2G8, Apr. 2, 1881; G. O. 295, Mav 2, 
1882; G. O. 298, Aug. 5, 1882. See also File 26251-150, J. A. G., Sept. 1, 1916. 

2. "Government transportation "—The act of June 30, 1914 (38 Stat. 393), provides 

"that hereafter no mileage shall be paid to anv officer where Government transporta- 
tion is furnished." File 13707-4S, J. A. G., Aug. 2, 1915. 

3. Same — Defined— The Comptroller of the Treasury has decided that the words " Govern- 

ment transportation" in the act of June 30, 1914, above quoted, means "transporta- 



MILEAGE. 387 

tiou on vessels owned or employed by the Government or by conveyance on land 
so owned or employed, but not transportation furnished on transportation request."' 
(Comp.Dec. Mar. 30, 1915, 169 S. & A. Memo. 3562.) File 13707-48, J. A. G., Aug. 
2, 1915. 

4. Naval Militia — Naval Militia members subpoenaed as witnesses before naval general 

courts-martial. See Naval Militia, 45, 46. 

5. Rate for officers— The act of March 3, 1901 (31 Stat. 1010, 1029), provides "that in lieu 

of traveling expenses and all allowances whatsoever connected- therewith, including 
transportation of baggage, officers of the Navy traveling from point to point within 
the United States under orders shall hereafter receive mileage at the rate of eight cents 
per mile, distance to be computed by the shortest usually traveled route * * * ." 
File 13707-48, J. A. G., Aug. 2, 1915. See also File 26251-150, J. A. G., Sept. 1, 1916. 

6. Travel performed— To be present as witness in private litigation— An officer ordered 

to perform travel in order that he might be present to testify if needed in a suit to 
which the Government is not a party, but its interest in the result of the litigation 
is sufficiently great in the opinion of the Secretary of the Navy to cause the officer 
to be present, is entitled to mileage for the travel performed. (Comp. Dec, July 28» 
1915; 173 S. & A. Memo. 3729.) File 26254-1855; C. M. O. 35, 1915, 10. 

7. Within United States. See Mileage, 5, 6. 

8. Witness in private litigation. See Mileage, 6. 

MILITARY COMMISSIONS. 

1. Conduct of military commissions and other exceptional military courts when 
held by naval authority— When exceptional military trials, whether by military 
commissions or provost courts, are held by naval authority, the commission or court 
conducting such trials shall be constituted and organized, and shall conduct its pro- 
ceedings in the manner provided for naval courts-martial or deck courts, so far as the 
exigencies of the service may permit. Similarly, records shall be kept of the pro- 
ceedings, which upon completion shall be transmitted to the Judge Advocate General 
of the Navy to be revised and recorded. No sentence of death shall be carried into 
execution until confirmed by the Secretary of the Navy; all other sentences may be 
executed upon approval of the convening authority. 

The jurisdiction of every such commission or provost court, in the matter of the 
punishments which it may adjudge, shall be limited in the discretion of the convening 
authority and shall be expressly stated in his order convening such commission or 
provost court. File 5526-39; C. M. O. 13, 1916, 6. 

2 Haiti — Authority of commander-in-chief of cruiser squadron to try political (military) 
prisoners by military commissions or provost. File 5526-39, J. A. G., Mar. 7, 1916. 
See also Treaty between United States and Haiti, proclaimed May 3, 1916, Art. 14. 

MILITARY COURTS. See Military Commissions, 1. 

MILITARY TRIALS. See Military Commissions, 1. 

MILITIA. C. M. O. 49, 1915, 26. See also Naval Militia. 

MILITIA, NAVAL. See Naval Militia. 

MINISTERIAL ACTS. See also Administration. 
1. President— Can not be required to perform in person. C. M. O. 12, 1915, 11. 

" MINISTERIALLY." See C. M. O. 127, 1900, 1. 

MINORS. 

1. Agreement— To reenlist or waive transportation. See Apprentices, 2. 

2. Allotments to— Should be made to guardian. See Allotments, 5. 

3. Citizenship. See Citizenship. 

4. Death gratuity— A minor is competent to designate a beneficiary. Sec Death 

Gratuity, 15. 

5. Same— A minor may be designated as beneficiary. See Death Gratuity, 16. 

6. "Desertion"— Accused pleaded "Not Guilty." Prosecution proved conclusively 

the offense charged. 

The above proof was not disputed by the accused, whose counsel confined the de- 
fense to the introduction of evidence 'showing that the accused was only 16 years 
of age when he enlisted in June, 1902, and not 21 years old, as stated by him 
under oath at that time. The accused himself took the stand and testified that his 



388 MINORS. 

age was wrongly stated by him when he enlisted, as above set forth, adding that his 
parents knew nothing of his enlistment at the time. He said that he left his ship 
and returned to them at their request, to help support them by working on his father's 
farm, such aid being necessary on account of the age and infirmity of his parents. 

The accused's sister was called for the defense, and corroborated his testimony as 
to his age and the circumstances of their father and mother. 

Finally, at the request of the court for further evidence as to the date of birth of 
the accused,. his counsel procured a certificate of baptism from the accused's home 
town, from which it appears that the accused was about 16 years and 8 months 
of age when he enlisted in the Navy. 

The counsel followed up this testimony by an argument in which he maintained 
that the evidence showed conclusively "that the accused enlisted when 16 years 
old, without the consent or knowledge" of either of his parents, and contended that 
said enlistment was illegal and void, and that therefore the accused was not amenable 
to Navy regulations and discipline, and should be discharged from the naval service 
accordingly, referring to certain decisions of the courts in support of such view. 

In reply to the above argument the judge advocate cited a number of cases similar 
to the one being tried, in which the United States courts, including the Supreme 
Court, have decided that the enlistment of a minor without the consent of his parents 
or guardian required by the statute is not void but voidable only, and while he remains 
in the service under such enlistment, the minor is amenable "to the discipline of the 
service, and can not be discharged by a civil court on a writ of habeas corpus while 
undergoing a court-martial sentence or awaiting trial by such court. 

The court found the specification proved, and that the accused was guilty of the 
charge, and sentenced him to the punishment usual in such cases, viz., confinement 
for one year, with corresponding penalties and forfeitures, and dishonorable discharge 
at the expiration of said period. All the members, however, recommend him to 
clemency "under the existing circumstances as shown by the evidence." 

It is beyond question from numerous decisions of both Federal and State courts, 
and particularly of the Supreme Court of the United States, that the position taken 
by the defense "in the foregoing case is untenable. In the Morrissey case the court 
said that the provision of section 1117, R. S., requiring the consent of parents or 
guardians to the enlistment in the Army of a minor, "is for the benefit of parent or 
guardian, * * * but it gives no privilege to the minor. * * * An enlistment 
is not a contract only, but effects a change of status. It is not, therefore, like an 
ordinary contract, voidable by the infant. * * * The contract of enlistment was 
1?ood so far as the petitioner is concerned. He was not only de facto, but de jure, a 
soldier— amenable to militarv jurisdiction." (In re Morfissev, 137 U. S., 157.) 
C. M. O. 217, 1902. See also Ex parte Rock, 171 Fed. Rep. 240; File 26251-6972: 2, 
J. A. G., Jan 25, 1913. 

7. Domicile— What affects. See File 5252-32, J. A. G., Jan. 26, 1910, 6. 

8. Same— Midshipmen. See Midshipmen, 6. 

9. Enlistment of— A minor enlisted in the Navy when 15 years old, alleging that he was 

18. To straighten out his record he now submits the consent of his father. The 
Bureau of Navigation requires if it is legal to accept the evidence and retain him under 
his four-year enlistment (there being no provision of law for the enlistment for four 
years of any one under 18 years of age), or whether it is necessary to secure the agree- 
ment of the father and boy to remain in the service during minority. He Id, that the 
enlistment is a valid one unless voided by the United States, and it is legal to retain 
him under his four-year term of enlistment. File 24368-7, Sec. Navy, Feb. 14, 1912. 

10. Same — Consent of guardian— A minor enlisted with consent of his guardian; a different 

Guardian subsequently appointed requested minor's discharge. Held, the depart- 
ment would not be justified in granting such request. File 7657-332, J. A. G.. Dec. 
29, 1915; C. M. O. 49, 1915, 25. Seealso File 9750-04, J. A. G., Nov. 30, 1904. 

11. Same— Consent of father necessary when living— The consent of the father, when living, 

is necessarv to the enlistment in the Navy of a minor under the age of 18. except 
where the mother or other person is the legal guardian of such minor. File 7657-293, 
J. A. G., June 19, 1915; C. M. O. 22, 1915, 9. See also section 1419 of the Revised 
Statutes; G. O. 81, Nov. 21, 1866. 

12. Same — Formerly discharged under writ of habeas corpus. See Fkatjdulent EN- 

LISTMENT, 17. 

13. Same— During minoritv— Extension of. See Extension of Enlistments, 5. 

14. Same— Error in service record. C. M. O. 6, 1915, 11. 



MINORS. 389 

15. Extension of enlistment— Original enlistment for minority. See Extension of 

Enlistments, 5. 

16. Fraudulent enlistment. See Fraudulent Enlistment, 57-GO. 

17. Naturalization. See Citizenship, 25. 

18. Pay — Upon reenlistment. See Pay, 86. 

MISAPPLICATION OF LAW. 

1. Court, by. See C. M. O. 37, 1915, 10. 

MISAPPROPRIATION. See C M. O. 17, 1910, 3-5; 12, 1911, 5; 27, 1913, 13; 1, 1914, 5. 

MISAPPROPRIATION OF MEDICAL STORES ENTRUSTED TO HIS CHARGE. 

1. Surgeon— Charged with. G. C. M. Rec, 6171. 

MISCARRIAGE OF JUSTICE. See Criticism of Courts-Martial, 16, 35. 

MISCONDUCT. See also Line of Duty and Misconduct Construed. 

1. Board of inquest— Should state in its opinion whether death was result of misconduct. 

See Boards of Inquest, 5. 

2. Death gratuity — Effect of misconduct on death gratuity. See Death Gratuity, 21. 

3. Defined— In a recent case where it appeared that the death of the deceased was due to 

his carelessness or negligence in stumbling over the string piece at the head of a dock 
in the navy yard while returning to his ship from liberty and falling upon a float 
eighteen or twenty feet below, it was held by the department that the death of the 
deceased was not due to his own misconduct. In accordance with precedent it must 
be held in such cases that, as the deceased was absent from his station and duty on 
liberty at the time of his death and was not actually engaged in the performance of 
duty, his death did not occur in the line of duty, and, under the circumstances above 
related, was not due to his own misconduct. However, negligence is not necessarily 
misconduct. "The term 'misconduct' implies a wrongful intention and not a mere 
error of judgment." (Smith v. Cutler (N. Y.), 10 Wend., 590, 25 Am. Dec, 580; United 
States v. Warner, 28 Fed. Cas., 404.) "In usual parlance misconduct means a trans- 
gression of some established and definite rule of action, where no discretion is left, 
except what necessity may demand; and carelessness, negligence, and unskillfulness 
are transgressions of some established but indefinite rule of action, where some dis- 
cretion is necessarily left to the actor. Misconduct is a violation of definite law; 
carelessness, an abuse of discretion under an indefinite law. Misconduct is a for- 
bidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite." 
(Citizens Ins. Co. v. Marsh, 41 Pa. (5 Wright), 386, 394; 5 Wds. & Ph., 4531.) 

4. Line of duty and misconduct cases. See Line of Duty and Misconduct Con- 

strued. 

5. Midshipmen— Dismissed for. See C. M. O. 31, 1915, 10-12. See also Hazing. 

6. Missing ship— Caused by misconduct of accused. C. M. O. 49, 1915, 8. 

MISINTERPRETATION OF EVIDENCE. 

1. By court. CM. O. 37, 1915, 10. 

MISLEADING REPORT. 

1. General court-martial specification. C. M. O. 52, 1910, 1. 

MISSEVG SHIP. 

1. Aggravated offense — The department takes occasion to call attention to the fact that 

the offense of leaving the ship just on the point of sailing is an aggravated one. 
CM. 0.50,1900,1. 

2. "Conduct to the prejudice of good order and discipline "—"Missing ship" 

should be charged under. See Absence from Station and Duty Without'Leave, 
12; Conduct to the Prejudice of Good Order and Discipline, 1, 12-14. 

3. "Deliberately and willfully." See "Deliberately and Willfully," 3. 

4. Intent— Necessity of proving. C. M. O. 49, 1915, 8. 

5. Misconduct— Of accused as a cause of missing ship. C. M. O. 49, 1915, S. 

6. Officer— Tried by general court-martial under "Conduct to the prejudice of good order 

and discipline." C. M. O. 1, 1908; G. C M. Eec. 31984. 

7. Same— Accused (officer) in consequence of his misconduct, missed the sailing of his 

ship on important duty, thereby making it necessary for the department to order 
another officer telegraphically to fill his place at the expense and inconvenience of 
the Government. File 26251-111S1, Sec. Navy, Dec. 17, 1915, p. 3. 



390 MOURNING BADGES. 

MISSING VESSELS. ; (■ 

1. Fixing date— U. S. S. Nina. See File 264-B. 

MISSPELLED WORDS. 

1. Record— General court-martial. C. M. O. 27, 1913, 11; 28, 1915. 

MISTAKES OF LAW. 

1. Recovery of money — "In a large number of eases it has been decided that the Govern- 
ment can not recover money voluntarily paid by its officers in consequence of an 
erroneous construction of law. (See 19 Op. Atty. Gen., 429; 21 Op. Attv. Gen., 323; 
Hedrick's Case, 16 Ct. Cls., 88; Arthur v. United States, 16 Ct. Cls., 433; Miller v. 
United States, 19 Ct. Cls., 353; Badeau v. United States, 130 U. S., 439; United States 
v. Ala. R. R. Co., 142 U. S., 621; Walker v. United States, 139 Fed. Rep., 409, 
affirmed 148 Fed. Rep., 1022; 20Comp. Dec, 182, 185.)" File 26254-1451:11, J. A. G., 
Apr. 12, 1915, p. 14. See act of Aug. 29, 1916, (39 Stat. 581), which reimbursed an offi- 
cer for $360 paid by him under a mistake of law. 

MISTY WEATHER. 

1. Navigation in. C. M. O. 2, 1915; 3, 1915. 

MITIGATION OF SENTENCES. See Commuting Sentences, 1, 2; Convening Au- 
thority, 39, 62; Reviewing Authority, 12; Secretary of the Navy, 49-56. 

MITIGATION OF SENTENCES AFTER FINAL ACTION. See Convening Au- 
thority, 62. 

MONEY. 

1. Borrowing. See Borrowing Money; Lending Money. 

2. Deposits. See Deposits. 

3. Disposition— Of money of deceased officers. See Disposition of Effects. 

4. Naval Academy— Payment of money to secure appointment to. See Naval Academy, 

12, 17. 

5. Payment of — To secure deserter's release. See Desertion, 88. 

6. Transactions — Between enlisted men— charging of under "Conduct to prejudice of 

good order and discipline." See Conduct to the Prejudice of Good Order and 
Discipline, 15. 

7. Transportation in naval vessels. See Gold, 1. 

MORAL OBLIQUITY. See C. M. O. 230, 1902. See also Insanity, 37. 

MORAL QUALIFICATIONS FOR PROMOTION. See Marine Examining Boards, 
14; Naval Examining Boards, 11-15; Promotion, 88-99. 

MORAL TURPITUDE. See C. M. O. 16, 1916. 

MORALE OF THE SERVICE. C. M. O. 23, 1910. 

"MORE THAN 26 YEARS OF AGE." 

1. Construed— With reference to appointment of assistant paymasters — Means having 
passed 26th birthday. See Assistant Paymasters, 3. 

MORPHINE. C . M. . 35, 1915, 4. 

MORRIS TUBE. See C. M. O. 28, 1907. 

"MOST FULLY AND HONORABLY." See Acquittal, 19, 20. 

MOTHER. 

1. Death gratuity— Mother not designated— May appeal to Congress. See Appeals, 2; 

Death Gratuity, 5. 

2. Same — Mother may be designated as a beneficiary. See Death Gratuity, 13. 

MOTION TO STRIKE OUT EVIDENCE. 

1. Court— Should rule on. C. M. O. 49, 1915, 12-14. See also Court, 116. 

2. Demurrer— Is virtually a motion to strike out. See Demurrer, 4. See also G. C. 

M. Rec. 21478a, p. 4. 

MOURNING BADGES. See Badges of Mourning. 

MULTIPLICATION OR PLURITY. See Charges and Specifications, 61-68. 



MURDER. 391 

MURDER. 

1 f^TiiTiii SIpp I^Tttrdt^t? Q 

2. Concurrent jurisdiction— The United States courts have concurrent jurisdiction 

with naval courts-martial in cases of murder committed outside the territorial juris- 
diction of the United States, but at places within the territorial jurisdiction thereof 
over which there is exclusive Federal jurisdiction the United States courts can 
alone take cognizance of the crime of murder. 14 J. A. G., 191, Aug. 4, 1909. See 
also Murder, 20. 

3. Courts-martial — Jurisdiction in cases of murder is not conferred upon naval courts- 

martial, and article 6 A. G. N. reads as follows: "If any person belonging to any- 
public vessel of the United Stated commits the crime of murder without the terri- 
torial jurisdiction thereof, he may be tried by a court-martial and punished with 
death." File 2195-45, Sec. Navy, Dec. 12, 1906; 14 J. A. G., 188, Aug. 4, 1909. See also 
Murder, 14-16. 

4. Cuba. See Murder, 11. 

• 5. Definition — " Felonious homicide is the killing of a human being without legal justifi- 
cation or excuse, and is either murder or manslaughter; murder being an unlawful 
killing with malice aforethought, and manslaughter being an unlawful killing with- 
out malice aforethought." (21 Cyc, 661.) Index-Digest, 1914, 28. 

6. Drunkenness — The condition of the accused as to sobriety at the time an offense was 

committed may in practice be shown by evidence. A person charged with "Murder," 
where a state of intoxication existed, which precludes the possibility of the accused 
having formed the necessary specific intent, may show this by evidence. File 4578-04. 
See also Drunkenness, 22; Intent, 2, 5. 

7. Enlisted men— Tried by naval general courts-martial on the charge of "Murder." 

C. M. O. 12, 1911, 5; 5, 1914, 7; G. C. M. Rec. 23037; 23654; 27960; 32478 (Guam). 

8. Foreign country — A fireman, second class, attached to a United States naval vessel, 

at anchor off Cherbourg, France, did on November 18, 1910, while on liberty on shore 
in the city of Cherbourg, France, willfully, maliciously, and with malice aforethought, 
and without justifiable cause, attack with a deadly weapon another enlisted man 
attached to the same naval vessel, and did thereby kill and murder said man. 
G. C. M. Rec. 23037. 

9. Same— Outside of Peking, China— A corporal, U. S. Marine Corps, was tried and found 

guilty by a general court-martial (station case), for "Murder," the specification 
alleging that he "knowingly, willfully, maliciously, and without justifiable cause, 
shot with a rifle and wounded one Wang Yung Ch'uan, a Chinese civilian, from the 
results of which wound the said Wang Yung Ch'uan died," and that he "did kill and 
murder the said Wang Yung Ch'uan." C. M. O. 5, 1914, 7; G. C. M. Rec. 27960. 

10. Same — Cuba. See Murder. 11. 

11. Guantanamo, Cuba, U. S. Naval Station— An enlisted man deliberately shot and 

murdered deceased in the U. S. navalstation, Guantanamo, Cuba, on November 13, 
1906. The department had no doubt respecting its power to convene a general court- 
martiai for the trial of the accused under A. G. N. 6 and A. G. N. 22, upon a charge 
of "Manslaughter," should such charge be preferred. " Naval courts-martial have 
not, however, at least in recent years, undertaken to deal with the offense of murder 
committed at any place within the jurisdiction of the United States. This Govern- 
ment holds the naval station at Guantanamo under a perpetual lease, made in 
pursuance of agreement with the Government of Cuba, ratified October 6, 1903. The 
terms of this agreement appear to extend the territorial jurisdiction of the United 
States to the naval station, Guantanamo, and that station is in fact under the Ameri- 
can flag and is occupied by United States naval forces." The department thereupon 
suggested to the Department of Justice that the accused be returned to the United 
States and tried by the Federal civil courts. The Department of Justice (Dept. 
Justice file 95328, Dec. 18, 1906) stated "If the Navy Department is willing to waive 
its custody and jurisdiction of the man * * *, and bring him to this country, 
with the witnesses and turn him over to the civil authority for trial, this would be the 
proper and preferable course to pursue." This was accordingly done. File 6336 
and 2195-45, Sec. Navy, Dec. 21, 1906. 

12. Guilty in a less degree than charged— Accused charged with "Murder" and found 

guilty of "Manslaughter." 

Apparently the only explanation of the finding is that the court gave unusual weight 
to the testimony of the accused himself on the stand in his own behalf or was under 
some misapprehension as to the distinction between minder and manslaughter. 
C. M. O. 12, 1911, 5. 



392 MURDER. 

13. Intent— The authorities uniformly agree that in the crime of murder "a deliberate 

purpose need not be long entertained; it is sufficient if it exist at the moment." 
(Winthrop's Military Law, p. 964.) [See Murder, 19.] Clark's Criminal Law, 
second edition, pages 188 and 189, states: 

"The use of the word 'aforethought' does not mean that the malice must exist 
for any particular time before commission of the act or that the intention to kill must 
have previously existed. It is sufficient that it exist at the time the act is committed. 
In short, the words 'malice aforethought' are technical and must be interpreted in 
the light of a long series of decided cases, which have given them an artificial meaning . ' ' 
C. M. . 12, 1911, 7. See also Drunkenness, 22; Murder, 6. 

14. Jurisdiction— Naval general courts-martial have no jurisdiction over the crime of 

murder when committed in time of peace within the territorial jurisdiction of the 
United States. C. M. O. 7, 1914, 12. 

15. Same — The Department of Justice in a letter to the Navy Department, December 18, 

1906 (Dept. Justice file 95328) stated that the reason naval courts-martial have not 
undertaken to deal with the offense of "Murder" committed at any place within the 
jurisdiction of the United States, is "due, in part, at least, to the fact that the trial and 
punishment of such grave offenses, by courts which proceed according to the course 
of the common law, and with its humane safeguard of the rights of the accused, in- 
cluding that of a trial by jury, are more consonant with the feelings of our people, and 
with the spirit of our institutions, than can be such trial and punishment by 
any military or naval tribunal." File 6336 and 2195-45, Sec. Navy, December, 190b. 

16. Same — The punishment of "Murder" on board naval vessels is not vested in naval 

courts-martial unless the crime was committed without the territorial jurisdiction 
of the United States, though if the crime be "Manslaughter" it may be taken 
cognizance of by a naval court-martial. 14 J. A. G., 1S9-190, Aug. 4, 1909. 

17. Same— Concurrent jurisdiction. See Murder, 2, 20. 

18. Limitation of punishment — "While the 'Limitation of Punishment' prescribed 

by the President for military courts does not distinguish between murder in the first 
and the second degrees, the Federal Statutes do so distinguish the different degrees of 
murder. The minimum punishment prescribed by the Federal Statutes for murder 
in the second degree is ten years' imprisonment." C. M. O. 5, 1914, 7-8. 

19. Malice — Where the accused, armed with a knife, renewed a quarrel and was in fact 

the aggressor, he cannot be considered as being "without malice" and is guilty of 
" Murder" in such killing. A deliberate purpose to kill need not be long entertained; 
it is sufficient if it exist at the moment of killing in order to constitute "malice." 
C. M. O. 12, 1911, 6-8. See also Murder, 13. 

20. Massachusetts, county of Barnstable — If an enlisted man attached to a naval vessel 

commits a homicide within the limits of the county of Barnstable, in the State of 
Massachusetts, the State courts would have jurisdiction in a case of murder to the 
exclusion of the United States courts as well as naval courts-martial. If, however, 
the offense be charged as "Manslaughter," then the jurisdiction of the State courts 
and of naval courts-martial would be concurrent, and he might be tried by either. 
14 J. A. G., 191, Aug. 4, 1909. 

21. Naval vessel at sea— A mess attendant, third class, United States Navy, was tried 

by general court-martial on the charge of "Murder" committed on a naval vessel 
at sea off Santo Domingo, Dominican Republic. The court found him guilty in a less 
degree than charged, guilty of "Manslaughter," and sentenced him to confinement 
for five years with corresponding hard labor, forfeiture of pay, and dishonorable dis- 
charge. 

The department criticized the court for not finding the accused guilty of the offense 
as charged and for adjudging an inadequate sentence. 

Owing to the impracticability of reconvening the court and in order that the 
accused might not wholly escape merited punishment, the department; subject to 
the foregoing remarks, approved the proceedings, findings, and sentence m this case. 
C. M. O. 12, 1911, 5; G. C. M. Rec. 23654. 

22. Naval vessel at navy yard, Philadelphia, Pa.— Accused killed another enlisted man 

on board a naval vessel at the navy yard, Philadelphia, Pa. Accused was first 
turned over to the civil authorities for trial, but later when it was found that the 
trial would develop certain scandalous evidence the Attorney General advised that 
the accused be tried by a naval court-martial for "Manslaughter," and he was de- 
livered to the naval authorities and so tried. 14 J. A. G., 188-189, Aug. 4, 1909; File 
6674:49, J. A. G., May 27, 1912. 



MURDER. 393 

23. Same— The above man could not be tried by naval court-martial for "Murder" as a 

general court-martial would not have had jurisdiction of that offense. File 6674:49, 
J. A. G., May 27, 1912. 

24. Same — Murder committed by an enlisted man on board a naval vessel at the navy 

yard, Philadelphia, Pa., may be dealt with by naval court-martial as "Manslaughter. ' ' 
G. C. M. Rec. 16098; File 6674-10, Mar. 8, 1910. 

25. Naval vessel at San Juan, Porto Rico — Accused stabbed a shipmate from which 

wound the latter died, the occurrence happening on board a naval vessel at San Juan, 
Porto Rico. The department directed that the accused be brought to trial by a 
general court-martial unless the insular authorities desired to take up the case. As 
there was no demand for the surrender of the accused, he was brought to trial for 
"Manslaughter" before a general court-martial. 14 J. A. G., 189, Aug. 4, 1909. 

26. Naval vessel at New York Navy Yard— Murder committed on board a naval vessel 

which was lying at the Cob Dock at the navy yard, New York, in the waters of 
Wallabout Bay, on June 30, 1897. 14 J. A. G., 191, Aug. 4, 1909. See also U. S. v. 
Carter (84 Fed. Rep. 622); Jurisdiction, 92. 

27. Naval vessel at Norfolk, Va., Navy Yard— Accused was charged with shooting and 

killing another man on January 1, 1877, on board a naval vessel lying at the wharf 
in what is now known as the Norfolk navy yard. The Commonwealth of Virginia 
had ceded to the United States the territory and all the jurisdiction which the Com- 
monwealth possessed, over the public lands known by the name of Gosport and certain 
lands immediately opposite, for the purpose of a navy yard. The accused was ar- 
raigned before a United States commissioner and admitted to bail; while at liberty 
he was arrested under a warrant of the mayor of Portsmouth and committed to jail. 
The prisoner asked for a writ of habeas corpus. It was held that the Federal court 
and not the State court had jurisdiction. (Ex parte Tatem, 1 Hughes 588. See 
also U. S. v. Cornell, 2 Mason, 60; U. S. v. Ames, 1 Woodbury and Mason, 76.) 14 J. 
A. G., 190-191, Aug. 4, 1909; Jurisdiction, 93. 

28. Naval vessel off a foreign country. See Murder, 8. 

29. Officers— Charged with. G. C. M. Rec. 10195; 10196. 

30. Porto Rico. See Murder, 25. 

31. San Juan, Porto Rico. See Murder, 25. 

32. Self-defense—" It is well established that one who is the aggressor or provokes the diffi- 

culty in which he kills his assailant can not invoke the right of self-defense to justify 
or excuse the homicide unless he in good faith withdraws from the combat in such 
a mariner as to show his adversary his intention in good faith to desist. It is not 
enough to justify or excuse the homicide that in the course of the difficulty it became 
necessary for defendant to kill the deceased in order to save his own life or prevent great 
bodily harm, but he must also have been free from fault in provoking or continuing the 
difficulty which resulted in the killing." (21 Cyc. 805). C. M. O. 12, 1911, 7. See 
* also Manslaughter, 13 (pp. 355-358). 

33. Specific intent. See Murder, 6, 13. 

MUTE. See Arraignment, 9, 18-24; Jeopardy, Former, 38. 

" MUTINOUS CONDUCT." 

1. Acting master's mate— Found guilty of, by general court-martial. G. O. 44, Dec. 7, 

1864. 

2. Enlisted men— Charged with. C. M. O. 40,' 1880; 37, 1882; 46, 1882; 9, 1SS3; 91, 1897; 

84, 1889. 

MUTINY. 

1. " Knowing of an intended mutiny, not communicating his knowledge to his 

superior or commanding officer "—General court-martial prisoner (enlisted 
man) tried by general court-martial. G. C. M. Rec. 23522. 

2. Sedition— Mutiny discussed in connection with sedition. See Sedition, 1. 

NAMES. 

1. Arraignment— Name of accused. See Arraignment, 25-27. 

2. Change of. See Name, Change of. 

3. Charges and specifications— Middle names may be abbreviated. See Charges and 

Specifications, 60. 

4. Judge advocate's name— Published in a Court-Martial Order. See Court-Martial 

Orders, 19; Criticism of Courts-Martial, 41. 

5. Members of courts-martial— Names published in Court-Mart ial Order. See Coukt- 

Martial Orders, 19; Criticism of Courts-Martial, 41. 



394 NAMES. 

6. Sentences— Should include name and rank of accused— A general court-martial sentence 

should contain the name and rank of the accused in order to show specifically who 
was sentenced. (Navy Regulations, 1913, R-816 (4); Forms of Procedure, 1910, p. 42; 
C. M. O. 37, 1909, 3; 42, 1909, 6; 55, 1910, 8; 30, 1910, 7; 1, 1913, 5; 20, 1913, 3; 42, 1914, 5. 
See also C. M. O. 53, 1910; 54, 1910; 7, 1912; 8, 1912; G. C. M. Rec. 21478; in which the 
sentences were of irregular form in that they did not include the name and desig- 
nation of accused.) C. M. O. 14, 1915, 2. 

7. Same — Name of accused should be spelled correctly in sentence. C. M. O. 16, 1912, 3. 

8. Specifications— Middle name of accused may be abbreviated. See Abbreviation, 1. 

NAME, CHANGE OF. 

1. Assumed, name — Recruiting officer properly refused to enlist an applicant under an 

assumed name. See Name, Change of, 5. 

2. Fraudulent enlistment cases— Where a man's name is incorrectly recorded, the 

department has authorized him to use his true name without prior legal sanction 
being exacted. This is the practice in the cases of men who fraudulently enlist under 
assumed names after having previously enlisted under their true name. In such 
cases, when as a result of court-martial proceedings or otherwise the true name of the 
man is ascertained, the department changes the record of his fraudulent enlistment 
so as to show his true name by which he is thereafter known while serving sentence, 
and during the remainder of his enlistment if restored to duty. (See File 24368-2, 
Sec. Navy, Sept. 28, 1910.) File 24368-13, J. A. G., March 29, 1915. 

3. " Jr." — Permission granted to drop— An officer having the same name as his father, a 

retired naval officer, requested permission to drop the "jr." from his name owing to 
the death of his father, which request was sjanted in accordance with the department's 
precedents. File 24368-15, Sec. Navy, May 6, 1915; C. M. O. 20, 1915, 7. See also 
C. M. O. 12, 1915, pp. 10-11; C. M. O. 16, 1915, p. 6; File 24368-4, Sec. Navy, July 11, 
1911; 24368-13, J. A. G., March 29, 1915; 24368-20, Sec. Navy, Sept. 5, 1916. 

4. Proof that name desired was true name. See Name, Change of, 14. 

5. Recruit enlisted under true name— An applicant applied for enlistment under an 

assumed name, stating that he had been known by the name under which he 
applied for some years. Upon advice of recruiting officer applicant enlisted under his 
original name. 

The action of the recruiting officer in enlisting this man under his original name 
was proper. The records of the Navy are an important part of the historical records 
of the country, and should as far as possible be correct. To this end the department 
customarily approves of changes in the cases of persons who, while still in the Navy, 
satisfactorily establish that then true names are different from those shown in the 
records or who comply with statutory provisions by obtaining judicial sanction of 
changes in their original names; and in cases of persons not in the Navy general 
laws have been passed authorizing such changes where the applicants served under 
assumed names during the Civil and Spanish wars; and special acts have been passed 
in individual cases not covered by the general law. For the department knowingly 
to enlist persons under assumed names would be to sanction and to encourage such 
practice, and to invite confusion in its records and considerable additional work 
which is involved in all such cases when applications are received from persons Avho 
have entered the Navy under assumed names and desire to have the records changed. 
File 24368-13, Sec. Navy, March 29, 1915; C. M. O. 12, 1915, 10-11. 

6. Right to change names — "It is a custom for persons to bear the surname of their 

parents, but it is not obligatory. A man may lawfully change his name without 
resort to legal proceedings, and for all purposes the name thus assumed will con- 
stitute his legal name just as much as if he had borne it from birth." (29 Cyc. 271. 
See also Christianson v. King County, 196 Fed. Rep. 791, 792; Loser v. Plainfield 
Sav. Bk., 128 N. W. 1101.) 

In some States statutes have been enacted which provide for legal proceedings 
on the application of persons desiring to change their names, but it has been held that 
such proceedings aro not exclusive and do not affect the common law right of individ- 
uals to change their names at will. . (In re McUeta, 189 Fed. Rep. 250. See also 
131 N. Y. S. 890; 124 N. Y. S. 989.) 

A full discussion of the law and decisions on this subject will be found in Smith 
v. U. S. Casualty Co. (197 N. Y. 420), and in the note to said case published in 18 
Ann. Cas. 701. The subject is also quite fully considered in the note to Laflin etc. Co. 
v. Steytler (14 L. R. A. 690). File 24368-13, J. A. G., March 29, 1915. But see Name, 
Change of, 7-14, which state the rule of the department. See also File 8267-03, 
J. A. G., Sept. 29, 1903; 4754-03; 23 J. A. G., 308 o 



NAME, CHANGE OF 395 

7. Rule of the department— The department's rule does not go so far as to render it 

impossible for persons in the naval service to change their names on the records, 
but provides in general that legal sanction must first be obtained. It is contrary 
to the department's policy to allow persons in the naval service to make even slight 
changes in their names, so far as concerns the naval records, unless they deem the 
matter of sufficient consequence first to obtain legal sanction for such change. In the 
case of Smith v. U. S. Casualty Co. (197 N. Y. 420) reference was made to the case of 
General Grant whose baptismal name was Hiram Ulysses "and he bore that appel- 
lation until he was appointed a cadet at West Point. General Hamer, who nominated 
him for a cadetship, by some means got his name mixed up with that of his brother. 
He was, therefore, appointed as ' Ulysses Sidney Grant' and that name once recorded 
on the booJis of the military academy could not be changed. He was baptized into the 
military school as U. S. Grant, and he has ever since been thus designated." File 
24368-13, J. A. G., March 29, 1915. 

8. Same— The department declined to authorize an officer named "Wells" to change 

the spelling of his name to "Welles" in the absence of legal action, the department 
stating that it "deems it inadvisable to make changes of this character except in 
cases where the legal steps to effect the change of name have been taken by the 
officer interested in pursuance of the requirements of local law." File 4982-96, 
Sec. Navy, May 27, 1896, quoted approvingly in File 24368-13, J. A. G., March 29, 
1915. See also File 7219-3, March 12, 1908. 

9. Same — An officer was informed that his application would be granted to change his 

middle name "Smith" to "Burbridge" only after he had obtaiued legal sanction 
therefor, the department stating in part: " In view of the inconvenience and possible 
confusion resulting from changes of this nature in an organization such as that of 
the Navy, the department considers they should not be made except in cases where the 
parties themselves have deemed the matter to be of sufficient importance to effect 
the change in accordance with the provisions of law." Subsequently, this officer 
having complied with the statutory provisions on the subject, the department 
authorized the change in question. File 7219, J. A. G., May 18, 1907; 7219:2, Sec. 
Navy, Feb. 15, 1908, quoted with approval in File 24368-13, J. A. G., March 29, 1915. 

10. Same— The department affirmed its decision of March 29, 1907, that a retired naval 

officer was not authorized to drop his middle name and initial without court pro- 
ceedings. This retired officer forwarded a statement to him from an attorney that 
court proceedings were not necessary for such change. The department in its letter 
of May 18, 1907, stated that it was familiar with the authorities on the question; 
"that these cases relate, however, to the transactions of private life wherein the pres- 
ence or omission of the middle name has, in some cases, been held not to be significant. 
An organization such as that of the Navy presents, however, different conditions. 
Inconvenience and possible confusion result from changes in the permanent records 
of the naval service and such changes should never be made except for good and suffi- 
cient reasons. The department considers that it is inadvisable to make changes of this 
character except in cases where the parties concerned have themselves deemed the 
changes to be of sufficient importance to effect them in pursuance of the requirements 
of law." File 7219-1, Sec. Navy, May 18, 1907, quoted with approval in File 2436S-13, 
J. A. G., March 29, 1915. 

11. Same— The mother of a former enlisted man having married a second time he requested 

that the department's records be changed so that he will be known under the name 
of his stepfather, and that a new discharge be issued him under the latter name. 
Held, that the department has consistently declined to approve of even slight changes 
in the names of its personnel, where it is admitted that the recorded name is correct, 
except where legal sanction for such change is first obtained; that the marriage of 
the mother does not of itself convey the name of the stepfather to the child; that 
even though this man's name were changed by legal proceedings, the department 
would not be authorized to issue him a certificate of discharge from the naval service 
in his new name in lieu of discharge in his true name previously issued to him; that 
even in cases where persons enlist in and are discharged from the naval service under 
assumed names, certificates of discharge can not thereafter be issued to them in true 
name except in those cases which are specifically covered bv statute. (See C. M 
O. 12, 1915, 11; File 24368-13, J. A. G., Mar. 29, 1915; 7219-2.) File 24368-14 J. V. Q ' 
Apr: 24, 1915; C. M. O. 16, 1915, 6. See also Name, Change of, 15, 16. 

12. Same— Department will not make changes in the names of naval officers unless t hex- 

deem the matter of sufficient importance to make application to the civil courts to 



396 NAME, CHANGE OF 

have such changes made in pursuance of law. File 4982-1896; 7219 and 7219-1, 1907; 
See also File 5460-25: 24368-4; 7219-2; 7219-3; 77 Navy and M. C. Let. Book, 422; 55 
Navy and M. C. Let. Book, 465 and 469. 

13. Same— A man named "Schall" was tried by general court-martial and three summary 

courts-martial previous convictions introduced. It appeared from an examination 
of the department's records that no man named "Schall" had in fact been tried by 
summary court-martial, and it was only after making inquiries at Marine Corps 
headquarters that it was learned that during the period covered by the extracts o f 
previous convictions the accused was serving under the name of " Ellsworth, " and 
that he was subsequently authorized to assume the name of "Schall." C. M. O. 
59, 1903, 2. 

14. Slight changes — Cases have arisen in which slight changes have been authorized 

by the department in the names of persons in the naval service where such changes 
were for the purpose of making the naval records show the man's true name. Thus, 
for example, a paymaster's clerk was granted permission to make a slight change in 
his name, satisfactory evidence being furnished the department that the name desired 
was the true name of this officer. File 5460-25, Sec. Navy, Dec. 10, 1908. 

15. Stepson — Does not necessarily take his stepfather's name. See Name, Change of, 11. 

16. Statutes—" During many years subsequent to the War of the Rebellion large numbers 

of bills Vere introduced in Congress asking relief in cases where men had enlisted in 
the Army or Navy under assumed names. In most cases this had been done innocently 
by the person enlisting, without realization of the difficulties in correcting the record 
thereafter. In such cases these bills had the favorable consideration of Congress, 
and relief was granted by special legislation. In 1890 a general act was passed giving 
relief to all soldiers and sailors who had enlisted or served under assumed names, 
while minors or otherwise, in the Army or Navy, during the War of the Rebellion, 
except in cases where names had been assumed to cover crimes or avoid their con- 
sequences." Senate Report No. 8S2, 61st Congress, 2d session. 

By act approved June 25, 1910 (36 Stat. 821), the previous law of April 14, 1890 (26 
Stat. 55), was extended to include the soldiers and sailors who enlisted under assumed 
names during the War with Spain or the Philippine insurrection. The law as thus 
amended reads as follows: 

" That the Secretary of War and the Secretary of the Navy be, and they are hereby, 
authorized and required to issue certificates of discharge or orders of acceptance of 
resignation, upon application and proof of identity, in the true name of such persons 
as enlisted or served under assumed names, while minors or otherwise, in the Army 
and Navy during the War of the Rebellion , the War with Spain, or the Philippine insur- 
rection, and were honorably discharged therefrom. Applications for said certificates 
of discharge or amended orders of acceptance of resignation may be made by or on 
behalf of persons entitled to them; but no such certificate or order shall be issued 
where a name was assumed to cover a crime or to avoid its consequences." 

It will be seen from the foregoing that Congress has provided for the issuance of 
certificates of discharge in true name, first, by special legislation applicable to indi- 
vidual cases; second, by a general act applicable to persons who served during the 
Civil War; and, third, by another general enactment amending the previous law so 
as to include persons who served during the War with Spain and the Philippine 
insurrection. Congress having assumed jurisdiction of this subject and legislated in 
connection therewith, designating the specific classes of cases in which the Secretary 
of the Navy was "authorized and required" to issue certificates of discharge in true 
name, it is not believed that the department should assume the authority to issue 
such certificates in cases which Congress has not seen fit to include in its legislation. 
The action of Congress in this matter has settled the policy of the Government to be, 
that the cases in which certificates of discharge in true name should be issued to 
persons no longer in the service are to be determined by the legislative and not the 
executive branch of the Government. While it is undoubtedly within the general 
powers of the department to correct its records to accord with the facts, yet when a 
man has served through an enlistment and received a discharge under an assumed 
name he has no further connection with the service and this department is not officially 
concerned in his subsequent movements or the motives which may in later years 
influence him to seek a certificate of discharge in a name other than that under which 
he served. Should the department undertake to investigate and determine the 
facts in all cases of men who may, for various reasons, have served in the Navy or 
Marine Corps under assumed names, and issue to them certificates of discharge in true 



397 

name, the burden would "be much greater than that which Congress has seen fit to 
place upon the department, and in view of the legislation already referred to, such a 
course could not appropriately be pursued without a further expression by Congress 
of its wishes in the premises. File 24368-13, J. A. G., March 29, 1915. See also Name,. 
Change of, 11. 

NARCOSIS. See G. C. M. Rec. 30485, p. 117. 

NATURAL CONSEQUENCES. See Acts, 3. 

NATURAL DEATH. See Line of Duty and Misconduct Construed, 68. 

NATURALIZATION. See Citizenshtp. 

NATURALIZATION CERTIFICATE. See Citizenship, 26. 

NAUTICAL ALMANAC. See File 17626; 9449-04, Mar. 18, 1904; 18168-25; 9449-04, Dec. 
2, 1904; 17279-3, May 11, 1905; 9449-04; 17626, Jan. 19, 1905; 1112-04, Feb. 12, 1904; 
17279-02, Feb. 13, 1904. 

NAVAL ACADEMY. See also "Board of Inquiry;" Hazing; Midshipmen. 

1. Academic Board of. See Academic Board of the Naval Academy. 

2. Aliens — Appointment of as midshipmen. See Midshipmen, 8; Res Judicata, 8. 

3. Appointments to. See Midshipmen, 5-9, 11-16, 43, 52, 53, 55, 70-73, 75. 

4. Civil War service— Service during Civil War at Naval Academy. See Civil War 

Service, 3. 

5. Civilian dentist at. See Appointing Power, 2; Dental Surgeons, 7. 

6. Dentist at the Naval Academy. See Appointing Power, 2; Dental Surgeons, 7. 

7. Enlisted men of Navy — Appointment of as midshipmen. See Midshipmen, 13, 14. 

8. Enlisted men of the Marine Corps — Appointment of as midshipmen. See Mid- 

shipmen, 52. 

9. Filipinos — Appointment as midshipmen. See Act, August 29, 1916 (39 Stat. 576). 

10. Foreigners — As students at Naval Academy. See Midshd?men, 8. 

11. Hazing. See Hazing. 

12. Influence to secure appointments — "It is of the utmost importance to the 

character and efficiency of any military service that its tone should be maintained 
at the highest standard of personal and professional honor, and particularly, that it 
should be invariably regarded and treated by all connected with it, as entirely above 
and disconnected from mercenary influences of any kind. The use of such influences, 
under any circumstances of inducement by a naval officer, to procure an appointment 
to the Naval Academy, is calculated to lower the tone of the service where it should 
be the highest and purest; and countenance or excuse of such action, by his brother 
officers or by the department would bring the Navy into deserved discredit." The 
accused in this case was tried by general court-martial for paying money intended as 
the consideration for services rendered in procuring the appointment of his son to 
the Naval Academy. G. O. 156, May 24, 1870. See also Congress, 11. 

13. Longevity pay — Service at the Naval Academy as a midshipman counts for longevity. 

See Longevity. 

14. Marines — Appointment of enlisted Marines as midshipmen. See Midshipmen, 52. 

15. Marine Corps— The act of July 9, 1913 (38 Stat. 103), "makes the Naval Academy in 

effect a training school for the Marine Corps as fully as for the Navy proper." File 
5252-66, J. A. G., May 12, 1915. 

16. Misconduct— Of officer on duty at Naval Academy. C. M. O. 14, 1915. 

17. Money — Appointments to the service may not properly be obtained by the payment 

of rnoney, and the Navy, at least, must neither be, nor seem to be, in any way con- 
nected with such a practice. See Naval Academy, 12; Congress, 11. 

18. Offense— Aggravated by the fact that the officer was on duty at the Naval Academy. 

C. M. O. 14, 1915. 

19. Reappointment of midshipmen. See Midshipmen, 70. 

20. Reinstatement of midshipmen. See Midshipmen, 75. 

21. Regulations of the U. S. Naval Academy, 1911, p. 116— Issued under the author- 

ity of R. S. 161 and have same force as Naval Instructions. J. A. G., June 7. 1915. 

"Under the present practice, plenary authority, the Secretary makes The regu- 
lations and can modify or change them at will, provided, of course, no statute is 
thereby trenched upon. The regulations of the Naval Academy do not, strict lv 
speaking, form a part of the regulations for the government of the* Navy. They are 



398 NAVAL ACADEMY. 

not embodied therein, and do not come under section 1547, R. S., giving the Navy- 
Regulations the force of law. The regulations of the Academv are not directly ap- 
proved by the President as are the Navy Regulations. The Secretary makes and 
can therefore change the regulations of the Naval Academy. 

"The academy regulations are not issued under any explicit statute. The 
Academy being under naval control is administered by the Secretary of the Navy , 
and it is assumed that he makes the regulations of the Academy under his general 
powers as Secretary, but there are certain clauses in the statutes touching more or less 
directly upon the matter, " as for instance, R. S. 1515; R. S. 1520; R. S. 1526; Act, 
Aug. 5, 1882 (22 Stat. 285); Act, March 3, 1903 (32 Stat. 1197); R. S. 1519; R. S. 1521 as 
amended by Act, Aug. 5, 1882 (22 Stat. 283), June 26, 1884 (23 Stat. 60), March 2, 1889 
(25 Stat. 878), March 3, 1899 (30 Stat, 1004), March 3, 1903 (32 Stat. 1197). 

" Duly formulated regulations being essential to the proper administration of such 
an establishment as the Naval Academy" the "effect of the statutes on the subject 
is to place the power of making such regulations in the hands of the Secretary of the 
Navy, subject to the general direction of the President." 36 J. A. G., 195, March 
19, 1907. 

22. Sea duty— There is no legal obstacle to providing thatthe course at the Naval Academy 

shall be so arranged as to include one year at sea. File 5252-76:2, J. A. G., May 3, 1916. 

23. Service at — Longevity pay. See Longevity. 

24. Six year course— Meaning of. See File 313-42, J. A. G., March 3, 1908, p. 4. See also 

Harmon v. U. S. (23 Ct. Cls. 412); Potter v. U. S. (34 Ct. Cls. 14, 16); Crenshaw v. U. S. 
(134 U. S. 109). 

25. Statutory history— Of the Naval Academy. See Weller v. U. S. (41 Ct. Cls. 324-343). 

26. "Year" — Definition of "year "as applied to the academic course at the Naval Academy. 

File 313-42, J. A. G., March 3, 1908. 

NAVAL ATTACHES. 

1. Brazil, Republic of— In accordance with a joint resolution of Congress, approved October 

13, 1914, a naval officer was granted leave of absence by the President, to assist the 
Republic of Brazil as an instructor in the Naval War College of that country, provided 
that while so absent in the sen-ice of Brazil he shall receive no pay or "allowances 
from the United States Government. The resolution further provided: "That 
the permission so given shall be held to terminate at such date as the President may 
determine. To insure the continuance of this work during such time as may be 
desirable, the President may have the power of substitution in case of the termination 
of the detail of an officer for any cause." Held: that if it is desired that this officer 
perform, in addition, the duties of naval attache, special legislation is necessary, 
and this fact should appear in the contract with the Brazilian Government. File 
28508-9, J. A. G., Jan. 18, 1915. 

2. Foreign languages— Student officers. See Naval Attaches, 6. 

3. Leave oi absence — Officer granted leave of absence to assist the Republic of Brazil 

as an instructor in the Naval War College, should not be detailed to active duty as 
naval attache withotxt special legislation, etc. See Naval Attaches, 1. 

4. Newspapers — The department desires that all newspapers and periodicals, both Ameri- 

can and foreign, for the Naval Establishment, for use on shore, both in and outside 
the continental limits of the United States, except such as may be purchased by naval 
attaches, shall be purchased after advertisement in the public press. Circular, Oct. 
6, 1914, File 12809-83. 

5. Official correspondence — Owing to confusion resulting in some instances from mem- 

bers and attaches of the embassies and legations in Washington communicating 
directly with the heads or individual officers of the executive departments, the Depart- 
ment of State circulated aletter, dated November 18, 1915, reading in part as follows: 
"Correspondence with a foreign Government or its diplomatic representatives in 
Washington should be carried on entirely through the Department of State, which is 
intrusted with the conduct of the foreign affairs of the Government." This practice 
has long obtained in this country and is in consonance with diplomatic practice 
abroad. 

6. Status of— An officer of the naval sen-ice having been detailed as an attache" to study 

foreign languages and having received orders to report to the American Minister and 
the senior naval attache - , obtained leave of absence by authority of the American 
Minister and the commander in chief but without the knowledge or consent of the 
senior naval attache*. The orders of this attache* specifically placed him under the 
orders of the naval attache, so far as his duties as a student officer were concened. 
The department censured this officer, stating, "In future you will regard the naval 



NAVAL ATTACHES. 399 

attache* to the legation at * * * as your superior officer and will not leave your 
station for any purpose without his specific consent." Department's letter, March 
2, 1911. 

NAVAL AUXILIARY SERVICE. 

1. Hospital Fund. See Hospital Fund, 6. 

2. Line of duty and misconduct. See Line of Duty and Misconduct Con- 

strued, 26. 

3. Naval hospital— Treatment in. File 152-97, Sec. Navy, May 11, 1908. 

NAVAL CADET. 

1. General court-martial— Tried by. C. M. O. 98, 1894, 2; 36, 1898, 2; 89, 1899. 

NAVAL CONTRACTOR. 

I. Tried by naval general court-martial— Found guilty and sentenced. G. O. 50, May 

30, 1865. 

NAVAL EXAMINING BOARDS. See also Marine Examining Boards; Promotion. 

1. Action upon record. See Promotion, 5. 

2. Appointment of members— According to naval custom, the Secretary of the Navy 

acts for the President in appointing examining boards. Such boards have been 
convened by the commander in chief, the record being acted upon by the President. 
File 8291-98, Nov. 29, 1898. See also Naval Examining Boards, 4. 

3. Candidate as a witness— See Naval Examining Boards, 26. 

4. Commander in chief — May not make changes in the constitution of a naval examin- 

ing board— Section 1496 of the Revised Statutes provides that "no line officer below 
the grade of commodore, and no officer not of the line, shall be promoted to a higher 
grade on the active list of the Navy until his mental, moral, and professional fitness 
to perform all his duties at sea have been established to the satisfaction of a board of 
examining officers appointed by the President." The civil courts having held in 
various decisions that the act of the Secretary of the Navy in a matter under his 
jurisdiction is in legal contemplation the act of the President (see Weller v. U. S., 
41 Ct. Cls. 324, and cases there cited) it is the prerogative of the Secretary of the Navy 
to sign precepts convening examining boards. In view of the above the department 
held that the commander in chief of a fleet has no authority, nor can he legally be 
granted authority by the department, to make changes in the constitution of naval 
examining boards and boards of medical examiners. File 28026-1086:2, Sec. Navy, 
Aug. 4, 1915; C. M. O. 29, 1915, 6-7. See also File 28027-154: 3, Sec. Navy, Dec. 26, 
1916, where such a change was ratified. 

5. Constitution of — Boards for the professional examination of officers of the Navy for 

promotion shall consist of "not less than three officers, senior in rank to the officer to 
be examined," and they shall, when practicable, be selected from the same corps to 
which the candidate belongs. (R. S. 1498.) File 26260-1244, J. A. G., April 14, 1911; 
15 J. A. G., 287, May 31, 1911, p. 2. 

6. Constitutionality of. See Constitutional Law, 4. 

7. Courts-martial— Considered by. See Naval Examining Boards, 15; Promotion, 

38-48. 

8. Same — An examining board is in no sense a court before which the candidate is on 

trial for his misdeeds. The punishment for such misdeeds is provided for by other 
statutes and is not a question to be considered by an examining board; but the bear- 
ing, if any, which such misconduct may have upon the officer's fitness for promotion 
is a question before the board and must be determined by it wholly independent of 
any disciplinary proceedings to which the officer has rendered himself liable. File 
26260-1392, J. A. G., June 29, 1911, pp. 23, 30. See also Promotion, 38-48. 

9. Disagreement as to findings— Case of disagreement in findings of examining board 

adjusted by the Judge Advocate General. Memo. J. A. G., No. 1, p. 7. 
10. "Due process of law"— Application of the constitutional provision relating to "due 
process of law" to naval promotion. File 26260-1392, June 29, 1911, p. 31. See also 
Promotion, 64. 

II. Duty of with reference to officers' service records— It is the department's desire 

that examining boards examine the records of officers quite as critically as it does 
their examination papers, bearing in mind the fact that it is the candidate's duty to 
establish his professional fitness rather than the duty of the board to establish his 
unfitness. The department desires the boards to adopt a high standard not onlv in 
regard to the written examination, but particularly in regard to recommending* for 

50756°— 17 26 



400 NATAL EXAMINING BOARDS. 

promotion officers whose service records indicate that they are in any respect lacking 
in officer-like qualities. When an officer's record shows that he is addicted to loose 
and careless methods, that he is inattentive to duty, or that his general performance 
of duty is merely passable, he should not be recommended for promotion. The 
department feels that the examining boards will appreciate the merit of the policy 
expressed herein and realize the importance of maintaining a high standard of effi- 
ciency by assigning great weight to the sen-ice records of candidates for promotion 
and will in no instance whatever recommend for promotion any officer whose zeal and 
efficiency are in any degree doubtful. File 26260-3525: 1, Sec/Navy, July 15, 1916. 

12. Evidence-^-Becord of a naval examining board as evidence in a general court-martial 

trial. See G. C. M. Eec. 28681, p. 52. 

13. Finding of — The law prescribes the phraseology to be used when an examining board 

finds the officer in all respects qualified for promotion. But there is no set language 
to be used when the officer is not in all respects qualified for promotion. 

A recommendation by the board, expressed in its finding, that the candidate be 
given a reexamination at such and such a time has no bearing upon the case if it is 
not the department's policv to grant a reexamination when an officer fails to qualify 
on the first examination. File 26260-396e, J. A. G., Feb. 24, 1910, p. 14. 

14. Same — Disagreement as to. See Naval Examining Boards, 9. 

15. Function and authority of— A naval examining board has authority and exercises 

functions as extensive in their nature as those exercised by naval courts-martial 
themselves, and in its consideration of an officer's qualifications for promotion it de- 
termines for itself all questions arising, independently of any disciplinary action 
that may or could have been taken in the premises. File 26260-697, 1392, J. A. G.. 
June 29, 1911, p. 15. See also File 587S-97; Davis o. U. S. ? 24 Ct. Cls., 442. 

A naval examining board in a recent case found, in eftect, that, ''no matter what 
its [the board's] personal feelings may be," a certain candidate was morallv qualified 
for promotion because the members of a court-martial had acquitted him of serious 
offenses with which he had been charged, and the board ''has not the power to ques- 
tion the findings of said court." 

The finding of the naval examining board in this case was not satisfactory and was 
not accepted by the department for the reason that it withheld the very opinion 
which the board was ordered to express— that of the board itself— and relied instead 
upon the finding of a general court-martial, which finding in point of fact was dis- 
approved by the convening authority. It is well settled that the fact that a case has 
been acted upon, or that no action has been taken in certain premises, does not close 
that portion of an officer's record to which it relates in such a manner as to relieve an 
examining board from the responsibility of scrutinizing it; and, even in the event of 
an acquittal by a court-martial, an examining board still has the duty cast upon it by 
express provisions of law to examine into the facts and outcome of such trial in order 
to determine for itself the effect, if any, that should be given thereto with reference 
to the officer's qualifications for promotion. (File 5S78-97; 26260-697; 26260-1392.) 

Moreover the finding of a court-martial, even if approved, would not be conclusive 
upon an examining board for the reason that a court-martial can not properlv arrive 
at a finding of " guilty " unless the evidence establishes the guilt of the accused be vond 
a reasonable doubt; while, on the other hand, members of an exarnining board are 
not required to be satisfied beyond a reasonable doubt that a candidate is not qualified 
for promotion, but instead are forbidden to recommend any officer for promotion "as 
to whose fitness a doubt exists." In other words, before a court-martial everv doubt 
must be resolved in favor of an accused, while before an examining board any doubts 
must be resolved against the condidate, and the existence of even a doubt as to his 
fitness requires that he be not recommended for promotion. File 26260-3342:1, Sec. 
Navv, Apr. 7, 1916; C. M. O. 13, 1916, 6-7. 

16. Questions and answers— The record of a Naval Examining Board must show the 

questions propounded to the candidate, and his answers thereto. Department's 
letter of March 6, 1883. 

17. Rank of members of board— The law is mandatory in its terms, requiring that all 

the members of a naval examining board must be senior to the officer under examina- 
tion before them. File 26260-1244, J. A. G., April 14, 1911, p. 4. 

The record of proceedings of a naval exam i ning board were disapproved as 
fatallv defective in that one of the members was junior to the candidate. File 26260- 
1244, J. A. G., April 14, 1911. 

18. Reconvening on own initiative— In a case where an examining board found a candi- 

date for appointment as assistant surgeon in the Navy mentally, morally and 



NAVAL EXAMINING BOARDS. 401 

professionally qualified, recommended him for appointment, the finding being signed 
by all the members and the recorder, but reconvened two days later on its own 
initiative, and decided to change its findings and recommendations, the Judge Ad- 
vocate General was of the opinion that the subsequent proceedings of the Naval 
Examining Board not having been authorized or directed by proper authority, was 
without legal effect, and it was advised, in view of all the circumstances of the case, 
that the record of proceedings of the board in the case be disapproved, and that the 
candidate be permitted to appear before another naval examining board. File 
26258-302, J. A. G., May 29, 1912. 

19. Record. See Naval Examining Boards, 13, 25. 

20. Scope of— The act of June 18, 1878 (20 Stat. 165), in explicit language prohibits inquiry 

into any fact which occurred prior to the last examination whereby the candidate 
was promoted, which has already been inquired into and decided upon, and specif- 
ically provides that "such previous examination, if approved, shall be conclusive." 
Only one exception to this mandatory rule is contained in the statute, and that is, 
"where the fact continuing shows the unfitness of the officer to perform all his duties 
at sea." File 26260-874, J. A. G., June 3, 1910, p. 4; 26521-173:1, J. A. G., Jan., 1917. 

21. Secretary of the Navy — Signs precepts of Naval Examining Boards. See Naval Ex- 

amining Boards, 4. 

22. Selection— First precept convening a "Board to Recommend Officers for Selection." 

File 28026-1484, Sec. Navy, Nov. 13, 1916. See also Promotion by Selection. 

23. Statement by candidate— May be under oath— Section 1500, R. S., gives the candi- 

date the right to be present when his case is considered and to submit a statement 
of his case under oath, but Held, right to have a statement sworn to might be waived. 
The right being statutory, knowledge of it must be presumed on the part of the can- 
didate and he can not claim ignorance of the statutory right as an excuse for not 
exercising it. File 26260-1360, Feb. 12, 1912. See also File 20260-1678, Feb. 28, 1912. 

24. Surgeon General — Composition of— It was held that the examination of a surgeon 

general of the Navy, whose actual rank was that of surgeon, should, under sections 
1496 and 1498, R . S ., be conducted by a Naval Examining Board composed of officers, 
if practicable, of the Medical Corps of the Navy who were senior to the candidate in 
the actual rank held by him in said corps. 15 J. A. G., 286, May 31, 1911. 

25. Witness — The unrecorded presence of a witness before an examining board would 

constitute a serious irregularity. File 26260-1360, Feb. 12, 1912. 

26. Same — Candidate as — When a candidate before examining or retiring boards submits 

a sworn statement he does not thereby become a witness and subject to examination 
as a witness. This, however, does not preclude the candidate from being called as 
a witness by the boards, and should he be so called it is proper that he be interrogated 
fully as to all matters pertaining to the subject matter of the examination. File 
26521-123, Sec. Navy, Aug. 13, 1915; 0. M. O. 29, 1915, 6. 

NAVAL HOME. 

1. Admission to — Forfeiture of retired pay — The Secretary of the Navy may not require 

that, upon being admitted to the benefits of the Naval Home at Philadelphia, Pa., 
a retired sailmaker must forfeit his retired pay. Suitable mode of procedure sug- 
gested. The Naval Home is supported from the naval pension fund. File 5362-35, 
J. A. G., June 29, 1911. 

2. Bureau of Navigation — Under supervision and direction of. See Naval Home, 4. 

3. Inmates— Cost of maintenance per annum— The gross cost of maintenance of each 

beneficiary in the Naval Home is stated to be about $656, and the net cost, that is, 
with pensions deducted, as $495. File 5362-35, J. A. G., June 29, 1911, p. 5. 
• 4. Naval Station, is a— The United States Naval Home, and the naval hospital within 
its grounds, for all -purposes, administrative, legal and disciplinary, is a naval sta- 
tion, of which the governor is commandant. 

The object of the Naval Home is to provide an honorable and comfortable home, 
during their life, for old, disabled, and decrepit officers and enlisted men of the Navy 
and Marine Corps, who may be entitled under the law to the benefits of the institu- 
tion, and who shall be known as beneficiaries. 

It is under the supervision and direction of the Bureau of Navigation, subject to 
the control of the Secretary of the Navy and the laws of Congress which may be 
passed from time to time. (Regulations, Origin, History and Laws of the United 
States Naval Home, Philadelphia, Pa., 1916, p. 5.) 
5. Status of. See File 26250-776:1. 



402 NAVAL MILITIA. 

NAVAL HOSPITALS. See Hospitals. 

NAVAL HOSPITAL FUND. See Hospital Fund. 

NAVAL INSTRUCTIONS, 1913, 1-4393. See General Order No. 110, July 27, 1914; C. M. 
0.36, 1914, 5; 42, 1914, 5; 53, 1914, 6-7; 6, 1915, 15; 12, 1915, 6, 12; 20, 1915, 5; 22, 1915, 5; 
31,1915,13,14; 35,1915,10; 49,1915,25; File 26237-251:69; 26806-131:29; 26254-1834:1; 
25254-2029; 25806-131:28; 27210-302; 26806-131:44; 26806-131:42; 165 S. and A. Memo. 
3424; 172 S. and A. Memo. 3687; 177 S. and A. Memo. 3833; Comp. Dec, June 13, 
1916, App. No. 25964, File 26254-2039; Naval Instructions, 1913, 1-4893 {revised). 

NAVAL INTELLIGENCE, OFFICE OF. See Office of Naval Intelligence. 

NAVAL MILITIA. 

1. Aviation branch.— Held, that a proposed general order limiting membership in the 

aviation branch of the Naval Militia only to "citizens of the United States" would 
not be legal in view of the law (act Jan. 21, 1903, 32 Stat. 775; act May 27, 1908, 35 Stat. 
399; act Feb. 16, 1914, 38 Stat. 283; G. O. No. 77) which provides that the militia shall 
consist of " every able-bodied male of foreign birth and who has declared his intention 
to become a citizen, who is more than 18 and less than 45 years of age" in addition 
to citizens of the various States, Territories, etc., and that the Naval Militia shall 
consist of such part of the Organized Militia as may be duly prescribed in each State, 
Territory and the District of Columbia. File 3973-129, J. A. G., Dec. 18, 1915; C. M. O. 
49, 1915, 26. 

2. Citizenship. See Naval Militia, 1. 

3. Collision — Occurring with vessel which has been turned over to Ohio Naval Militia. 

See Collision, 14. 

4. Constitution of — The duty of duly prescribing who shall constitute the Naval Militia 

of any State devolves upon the Slate and not upon the Secretary of the Navy. File 
3793-139, J. A. G., March 15, 1916. 

5. Construction of act, February 16,, 1914 (38 Stat. 283, 284, 286-287, 289). 

File 26256-35:17. See also Naval Militia, 1, 34. 

6. Death. — Of member of Naval Militia while on a naval vessel. See Naval Militia, 27. 

7. Deck courts — Officers of the Regular Navy who are detailed for duty with the Naval 

Militia as inspector-instructors may not act as deck court officers for the trial of 
enlisted men of Regular Navy on duty with the Naval Militia. File 3973-107: 2, 
J. A. G., Aug. 21,1915. 

8. District of Columbia— Promotion of officer— "Where the recommended promotion of a 

lieutenant (junior grade) in the Naval Battalion, National Guard of the District 
of Columbia, was protested by a former lieutenant (junior grade) in said battalion, 
on the ground that the latter "had been illegally discharged and was entitled to the 
promotion as being the senior lieutenant (junior grade) in said battalion: Held, that 
the discharge in this case was lesjal; and it appearing that the officer nominated for 
promotion was therefore the senior lieutenant (junior grade) actually in service there 
exists no le?al objection to his promotion to fill a vacancy in the grade of lieutenant 
(junior grade) in said battalion, provided he had duly qualified therefor. In this 
aspect of the matter, it was not necessary to decide whether promotions in said Naval 
Battalion were required to be made by seniority. File 7984-30, Sec. Naw, Feb. 20, 
1915; C. M. O. 10, 1915, 10. See C. M. O. 10, 1915, 10 for consolidation of divisions. 

9. Same — Legality of orders — An order of the commanding officer of the Naval Battalion, 

District of Columbia National Guard, relieving an ensign from duty with the Fourth 
Division and ordering him to duty with the Second Division, is sufficient authority 
for the transfer and the said ensign became a member of the Second Division, even 
though such orders did not on their face show that they were approved by the Com- 
manding General, National Guard, District of Columbia, as required by the Regu- 
lations for the National Guard of the District of Columbia. The order in question 
was in legal contemplation approved by the Commanding General, for, in absence 
of evidence to the contrary, such approval is presumed. Copy of said order was filed 
at headquarters. The Commanding General thereafter recognized said order as valid 
by directing the discharge of this officer as supernumerary thus treating him as be- 
longing to the Second Division. The Commanding General never objected to said 
order and its validity was never questioned until more than a year after its Issue, 
and then only because of the discharge of the aforesaid officer *as supernumerarv. 
File 7984-30, Sec. Navy, Feb. 20, 1915; C. M. O. 10, 1915, 10-11. 



NAVAL MILITIA. 403 

10. Same— Discharge of supernumerary officers— The approval of the President is no t 

necessary for the honorable discharge of officers of the Naval Battalion, District o f 
Columbia National Guard, who are rendered supernumerary in consequence of the 
consolidation of divisions. File 79S4-30, Sec. Navy,,Feb. 20, 1915; C. M. 0. 10, 1915, 10. 

11. Enlistment in Naval Militia— Effect of enlisting m the Naval Militia of a person who 

is in receipt of a pension. File 3973-144, J. A. G., March 29, 1916. 

12. Examination — Scope of examination for officers and enlisted men of the Naval Militia 

for aeronautic duty. File 3973-129, J. A. G., Dec. 18, 1915. 

Recommended that records of examinations for promotions, etc., pass through 
Office of Judge Advocate General. File 28026-1399:1, J. A. G., July 17, 1916. 

13. General Order No. 77, February 25, 1914 (38 Stat. 283)— This general order is 

merely a publication of the act of February 16, 1914, "to promote the efficiency of 
the Naval Militia, and for other purposes." C. M. O. 49, 1915, 16. 

14. General Order No. 150, June 14, 1915. See Naval Militia, 21, 29. 

15. Jurisdiction— Subject to jurisdiction of naval courts-martial when employed in the 

service of the United States in time of war or public danger (file 3973-107, Feb. 
16, 1915), or for refusing to obey the President's order calling them into the service 
of the United States. (Martin v. Mott, 12 Wheat. 19; Houston v. Moore, 5 Wheat. 1; 
Act Feb. 16, 1914, sec. 5 (38 Stat. 285).) 

16. Same— General court-martial of the Regular Navy has jurisdiction to try an enlisted 

man of the Regular Navy serving on board a naval vessel loaned to the Naval Militia. 
See Naval Militia, 39. 

17. Same — Naval Militia serving on board a vessel of Navy. See Naval Militia, 36, 37. 

18. Loan of vessels— By Regular Navy to Naval Militia. See Collision, 14; Naval 

Militia, 39-41. 

19. Marine divisions— The Naval Militia act of February 16, 1914 (38 Stat. 283), applies 

to marine divisions that existed as a part of the Organized Militia of certain States 
at the time of the passage of the act, which divisions still exist. 

The Naval Miiitia act of February 16, 1914 (38 Stat. 283), applies also to marine 
divisions of the Naval Militia of certain States, Territories, and the District of Colum- 
bia, that may hereafter be organized as parts of the Naval Militia in such States, 
Territories, and the District of Columbia. File 3973-98, Sec. Navy, Jan. 12, 1915; 
C. M. O. 6, 1915, 14. 

20. Marine league— Use of the Naval Militia outside of the three-mile limit. File 3973- 

136:2, J. A. G., Feb., 1916. 

21. Oaths — The Naval Militia should adhere strictly to the form of oath provided in General 

Order No. 150, June 14, 1915. If each State were permitted to change the oath pre- 
scribed, in various ways which it might think still met the requirements, uniformity 
would at once be gone and there would be irreconcilable chaos. File 3973-109: 4, Sec. 
Navy, Aug, 31, 1915; C. M. O. 29, 1915, 8. 

22. Officer — Summoned as a witness before a general court-martial of the Regular Navy. 

See Naval Militia, 45, 46. 

23. Ohio— Naval vessel loaned to. See Collision, 14; Naval Militia, 3. 

24. Pay— Of retired naval officer while holding a commission in the Naval Militia. See 

Pay, 94. 

25. Same— For joint service or maneuvers with the Regular Navy. (Compt. Dec., June 20, 

1914.) File 3973-64:2. 

26. Penalty envelopes— Use of by Naval Militia. See File 3973-127:2, Sec. Navy, Feb. 11, 

1916; 3973-127:3, J. A. G., Feb. 19, 1916. 

27. Pensions — The question as to whether the dependents of a member of the Naval 

Militia, who dies while participating in a cruise on board a United States war vessel, 
is entitled to a pension should be answered by the Commissioner of Pensions, under 
whose jurisdiction lies the authoritv for granting pensions to claimants, and not by the 
Secretary of the Navy. File 26250^-709:1, J. A. G; C. M. O. 49, 1915, 26. 

28. Same — Effect of enlisting in the Naval Militia of a person who is in receipt of a pension. 

See Naval Militia, 11; Pensions, 2. 

29. Physical examinations— General Order No. 150, June 14, 1915, paragraph 2 (b). pro- 

vides: "Every officer now in the Naval Militia, and every Candida tefor appoint mom 
as a commissioned or warrant officer in the Naval Militia, must pass the physical 
examination prescribed for officers in this order," notwithstanding the fad thai' such 
officers or candidates have been previously examined bv a board of officei-s of the 
Regular Navy, including naval medical officers. File 27405-S, J. A. G., Oct. 4, 1915; 
C. M. O. 35, 1915, 10. 



404 NAVAL MILITIA. 

30. Private business— Naval Militia officer made use of the services of a yeoman, 2d class 

of the Regular Navy for certain duties in c}nnection with private business, instead 
of requiring him to atten u strictly to his duties in connection with the Naval Militia 
File 26251-11340:6, Sec. Navy, Jan. 13, 1916. -""w*. 

31. Repairs to vessels— Procedure of requests for and executing repairs to Naval Militia 

vessels. File 3973-126, J. A. G., Mar. 31, 1916. 

32. Retired officers of the Regular Navy— Emplovmenfc of in Naval Militia See 

Retired Officers, 54-58. 

33. Secretary of the Navy— Has not the duty of prescribing who shall constitute the 

Naval Militia of any Stat !. See Naval Militia, 4. 

34. Shipkeepers— The number o:' enliited men detailed for duty as shipkeepers on vessels 

loaned to the Naval Militia under the provisions of section 2 of the Naval Militia act 
of February 16, 1914 (38 Stat. 283; G, O. No. 77), are in addition to the number allowed 
by law for the Regular Naval Establishment. The enlistment of such additional num- 
ber of men, even if in excess of appropriations, is not prohibited by sections 3679 and 
3732 of the Revised Statutes, as amended. Men detailed for duty with Naval Militia 
under section 17 of the Naval Militia act are included in the number allowed by law 
for the Regular Naval Establishment. File 3973-106, J. A. G., Feb. 8, 1915. See also 
File 2625.5-358:14; C. M. 0. 10, 1915, 11; Naval Militia, 3S-41: File 3973-20, J. A. G., Oct, 
23, 1909, for discussion of "shipkeepers " in 1909; File 26835-542, J. A. G., Mar. 15, 1915, 
Cth ind., for proper scope of their employment. 

35. Status of Naval Militia while cruising on board a vessel of the Regular Navy- 

Naval Militia officers can not impose punishments on men belonging to their organiza- 
tions while cruising on board a vessel of the Regular Navy, nor can Naval Militia 
officers convene State courts-martial on such vessels. File 3973-107, J. A. G., Feb. 
16, 1915; C. M. O. 10, 1915, 11-12. 

36. Status of Naval Militia cruising with Regular Navy for training and instruc- 

tion—Naval Militia officers cruising with the Regular Navy for training and instruc- 
tion are authorized by law to perform duty and to exercise' authority over the naval 
personnel of inferior rank, but can not impose punishments upon persons in the naval 
service. File 3973-107, J. A. G., Feb. 16, 1915; C. M. O. 10, 1915, 11-12. 

37. Same— Members of the Naval Militia, participating with the Regular Navy in cruises 

for the purpose of training and instruction, are not employed in the service of the 
United States, but remain civilians and consequently are not subject to punish- 
ment under the Articles for the Government of the Navy. The naval officer of the 
Regular Navy in command has, however, full authority to enforce any orders which 
affect the discipline, safety, and well-being of the vessel or any part of the armament, 
equipment, or crew, and to this end may, if necessary, place members of the Naval 
Militia in confinement or remove them from the vessel under lawful regulations 
issued by the Navy Department, not as 'punishment, but merely to maintain discipline. 
File 3973-107, J. A G.. Feb. 16, 1915; C. M. O. 10, 1915, 11-12. 

38. Status in relation to the Regular Navy while on board naval vessels for training 

or on vessels loaned to States— A naval commanding officer has supreme authority 
over all persons on board his ship, including members of mi] itia organizations. While 
he can not try the latter by court-martial or impose pimishments upon them under 
article 24, A. G. N., he may, if necessary, place them in confinement, or remove them 
from the vessel, when circumstances demand, under lawful regulations to be adopted 
by the department. It should, however, be distinctly understood that such action 
is not authorized as punishment, but only in so far as is necessary to maintain the dis- 
cipline of the ship and the supreme authority of the commanding officer. 

Militia officers assigned to duty by the commanding officer of a naval vessel, or 
detailed to duty on a vessel loaned to the Naval Militia, have all the authority over 
persons of inferior rank, whether in the Regular Navy or in the Naval Militia, which 
may be necessary for the purpose of carrying out the duty upon which they have 
been detailed; but this does not include the power of punishment. 

Persons in the Regular Navy thus subjected to the authority of the militia officers 
may, for insubordination, be punished by the department in accordance with the 
Articles for the Government of the Navy for conduct to the prejudice of good order 
and discipline. 

Persons in the Naval Militia guilty of insubordination and other military offenses 
while cruising on board a vessel of the Regular Navy may, and should be, punished by 
the State authorities under State laws; but such punishments can not be imposed on 
board, but must be deferred until the offenders have been disembarked. Until 
disembarked, the commanding officer of the naval vessel would be authorized in 



NAVAL MILITIA. 405 

taking such steps as might be necessary to effect restraint of the offender and to pre- 
vent the occurrence of another similar outbreak, which is, of course, injurious to dis- 
cipline. By "naval vessel" in this connection is intended a vessel controlled for the 
time being by the United States. In such condition the State can not exercise juris- 
diction. 

There would seem to be no objection to the holding of a State court-martial on board 
a naval vessel loaned to the Naval Militia, and for the time being under the control 
of the State, whether in reserve or as an outright loan. Also, punishments may be 
imposed upon militia men serving on such vessels by the commanding officer of the 
Naval Militia, when he is on board, in accordance with State laws. In these latter 
cases the State can exercise jurisdiction, as the United States has relinquished it for 
the time being. File 3973-107, J. A. G., Feb. 16, 1915; C. M. O. 10, 1915, 11-12. 
39. Status of an enlisted man of the Regular Navy serving on board a vessel under 
jurisdiction of Naval Militia— A fireman first class, U. S. Navy, was tried by 
general court-martial at the navy yard, New York, by order of the Secretary of the 
Navy, on the following charges: 
Charge I: Absence from station and duty without leave. 

Specification.— -In that * * * a fireman first class in the United States Navy, 
did, at or about seven hours postmeridian, on or about the twenty-third day of July, 
nineteen hundred and fifteen, without leave from proper authority, absent himself 
from his station and duty on board the United States ship Dorothea, at Put-in-Bay, 
Ohio, to which ship he had been regularly assigned, and did remain so absent until 
he surrendered himself on board the aforesaid ship at the aforesaid place, at about 
twelve hours and thirty minutes antemeridian, on or about the twenty-fourth day 
of July, nineteen hundred and fifteen. 
Charge II: Leaving station before being regularly relieved. 

Specification.— -In that * * * a fireman first class in the United States Navy, 
attached to and serving on board the United States ship Dorothea, at Put-in-Bay, 
Ohio, did, at or about seven hours postmeridian, on or about the twenty-third day 
of July, nineteen hundred and fifteen, while on watch in charge of the fireroom of 
said ship, absent himself from his station before being regularly relieved, and did 
remain so absent for a period of about five hours. 

The court having accepted the plea of the accused to dismiss the charges, and for- 
warded the record to the department, the Secretary of the Navy returned the record 
with the following letter: 

1. The trial in this case was ordered upon the charges of "Absence from station 
and duty without leave," and "Leaving station before being regularly relieved." 
Page 2 of the record shows that at the outset of the proceedings " the court was cleared. 
When opened, all parties to the trial entered, and the president announced that the 
court found the charges and specifications in due form and technically correct." 
No preliminary plea or motion was made by counsel for the accused based upon 
the insufficiency of the specifications to support the charges, or the lack of jurisdiction 
of the court. Nevertheless, after the prosecution had rested, and without hearing 
any evidence for the defense, the court has decided upon motion of counsel for the 
accused "that it has no jurisdiction to proceed with the case"; and, as stated in your 
letter of transmittal, "that in accordance with the provisions of General Order 77, 
the accused is only triable on the charge of 'Conduct to the prejudice of good order 
and discipline.' " 

2. The department considers the court's ruling last above mentioned to be errone- 
ous. General Order 77 is merely a publication of the act of Congress approved Febru- 
ary 16, 1914 [38 Stat. 283], "to promote the efficiency of the Naval Militia, and for other 
purposes." Section 12 [38 Stat. 286-287] of this act was quoted by counsel for the ac- 
cused, omitting the material and pertinent portion thereof. This section provides. 
inter alia, "that any officer or petty officer or enlisted man of the Naval Militia placed 
on duty as aforesaid or detailed to duty on a vessel assigned to the Naval Militia shall 
have, during the time that he is on duty, all authority over all persons inferior to 
himself in rank or equivalent rank necessary for the purpose of carrying out the duty 
upon which he has been so detailed." It is not therefore correct," as contended by 
counsel for the accused, that the court of which you are president " has no jurisdiction 
over his [the accused's] person," because "the Ohio Naval Militia was at the time 
of the alleged offenses of which the accused is charged were committed" not "taking 
part in any maneuvers, field instruction, or encampment of the Regular Navy, which 
was a prerequisite to the exercise of any authority of the Naval Militia over any 
members of the naval service." On the contrary, under the express language of 



406 NAVAL MILITIA. 

the law, as above quoted from General Order 77, militia officers detailed on a vessel 
assigned to the Naval Militia have the same authority over enlisted men of the Regular 
Navy on board that they have when participating in cruises, etc., with the Regular 
Navy. — That is to say, in either case the militia officer has "all authority over all 
persons inferior to himself in rank or equivalent rank necessary for the purpose of 
carrying out the duty upon which he has been so detailed." Similar provisions are 
contained in Court-Martial Order No. 10, 1915, pp. 11 and 12. [See Naval Militia, 38.] 

3. The Articles for the Government of the Navy provide that "all offenses com- 
mitted by persons belonging to the Navy which are not specified in the foregoing articles 
shall be punished as a court-martial may direct." (A. G. N. 22.) 

4. The Navy Regulations adopted pursuant to this article provide that "when the 
offense is a neglect or disorder not specially provided for, it shall be charged as 'Scandal- 
ous conduct tending to the destruction of good morals/ or 'Conduct to the prejudice 
of good order and discipline.'" (Navy Regulations, 1913, R-712 (4).) 

5. When the offense is a neglect or disorder specifically provided for, it is properly charge- 
able under the specific charge, and not under the general or catch-all clause (Article 22) of 
the Articles for the Government of the Navy. The court's attention may be invited 
to Court-Martial Order No. 4. 1913, pp. 45, 46, quoting an opinion of the Attorney 
General [29 Op. Atty. Gen., 563] holding that embezzlement of public funds by a pay 
officer of the Navy, being specifically provided for by the Articles for the Govern- 
ment of the Navy, is properly alleged under the specific charge of " Embezzlement, 
in violation of article fourteen of the Articles for the Government of the Navy"; and 
that "it could with much reason be urged" that the offense being thus specifically 
provided for, "is excluded by express language from article 22." The Attorney 
General, however, stated in this connection that he knew of "no rule of practice which 
prohibits the formulation of the same charge under more than one article, and as a 
matter of precaution it might be advisable to formulate the charges against the ac- 
cused under both paragraph 9, article 14, and article 22." 

6. Thus, according to the Attorney General, where the offense is specifically pro- 
vided for, it is properly alleged under the specific charge, but may in addition be also 
charged under the catch-all clause, article 22 of the Articles for the Government of 
the Navy, thatis, "Conduct to the prejudice of good order and discipline," or " Scandal- 
ous conduct tending to the destruction of good morals," as may be appropriate. 
[See Charges and Specifications, 61- 68 for rule of department regarding multi- 
plicity or plurality of charges.] 

7. In the present case, therefore, the offenses alleged to have been committed by 
the accused were properly chargeable first, under the specific charges, if any, appli- 
cable thereto, and second, under the general or catch-all clause (Article 22, A. G. N., 
and R-712 (4)) if not specially provided for, or if there were aggravating circumstances 
distinguishing them from the ordinary case. 

8. It is scarcely necessary to state that the offenses of "Absence from station and 
duty without leave," and "Leaving station before being regularly relieved," are spe- 
cifically provided for by the Articles for the Government of the Navy. (See A.G.N. 
4, 8.) They were therefore, in accordance with the department's policy and practice, 
the opinion of the Attorney General and other established authorities, properly 
charged under thespecific headings of "Absence from station and duty without leave," 
and "Leaving station before being regularly relieved." Whether they might also 
have been charged as "Conduct to the prejudice of good order and discipline" in 
accordance with the rule of practice referred to by the Attorney General and the 
department's policy, is not necessary to decide, the fact being that they were not so 
charged, and that there is no rule of practice, regulation or statute requiring a multi- 
plicity of charges in any case. 

9. In view of the arguments of counsel for the accused in this case, and the court's 
decision, as stated in your letter transmitting the copy of proceedings, it may be re- 
marked that the principles hereinbefore stated in no manner conflict with Court 
Martial Order No. 10, 1915, p. 12, which provides that persons in the Regular Navy 
subjected to the authority of militia officers "may." for "insubordination" be pun- 
ished by the department "in accordance with the Articles for the Government of the 
Navy" for "Conduct to the prejudice of good order and discipline. 

10. The Articles for the Government of the Navy and the Navy Regulations pro- 
vide for charging "Conduct to the prejudice of good order and discipline" when the 
offense is one not specifically provided for. While a large number of offenses which 
are specifically provided for might be included under the general characterization 
of "insubordination," this expression, as used in the department's court-martial order 



NAVAL MILITIA. 407 

related to such acts of insubordination as were not specifically provided for, and which 
would therefore, under the Articles for the Government of the Navy, be properly 
chargeable as "Conduct to the prejudice of good order and discipline." Thus, the 
refusal of an enlisted man in the accused's status to obey the order of a militia officer, 
or his disobedience of such order, or his disrespectful conduct and deportment toward 
such officer, would be acts of insubordination properly chargeable under "Conduct 
to the prejudice of good order and discipline" for the reason that, while such officer 
is by law vested with authority over enlisted men detailed to duty on board a naval 
vessel loaned to the Naval Militia, nevertheless such officer is not, strictly speaking, 
the "superior officer" of an enlisted man in the Regular Navy. This expression in 
its commonly accepted meaning refers to a man's superior in the same service. Thus, 
article R-64, provides that "within the meaning of the foregoing articles, unless there 
be something in the context or subject matter repugnant to or inconsistent with such 
construction, officers shall mean commissioned and warrant officers, and paymas- 
ters' clerks; superior officers shall be held to include mates and petty officers of the 
Navy and noncommissioned officers of the Marine Corps, in addition to the officers 
enumerated." Accordingly, "Disobeying lawful order of superior officer," "Strik- 
ingj assaulting, or attempting or threatening to strike or assault his superior officer 
while in the execution of duties of office," " Refusing to obey the lawful order of supe- 
rior officer," "Treating his superior officer with contempt or being disrespectful to 
him in language or deportment while in the execution of his office, " are offenses specifi- 
cally provided for; nevertheless, in view of the relations existing between an enlisted 
man of the Regular Navy and a Naval Militia officer under whom he is serving, and 
in view of the commonly accepted interpretation of the words "superior officer," and 
the definition thereof contained in R-64, such offenses would under the circumstances 
stated be chargeable as "Conduct to the prejudice of good order and discipline," and 
this is the meaning of the paragraph quoted from Court-Martial Order No. 10, 1915, 
p. 12, and this meaning is expressed in said paragraph by the statement that insubor- 
dination under the circumstances suggested would be punishable as "Conduct to the 
prejudice of good order and discipline " "in accordance with the Articles for the Govern- 
ment of the Navy," that is, where such insubordination is not specifically provided for. 

11. In conclusion, you are informed that the department's decision is as follows: 

(a) That the charges and specifications preferred against the accused are in due form 
and technically correct, as decided by the court at the outset of its proceedings; 

(b) That while these offenses might perhaps have been charged as "Conduct to the 
prejudice of good order and discipline," they are specifically provided for by the 
Articles for the Government of the Navy, and were therefore properly charged under 
the specific headings; and 

(c) That the court-martial of which you are president, has jurisdiction of the charges 
in question as preferred. 

12. It is accordingly directed that the court in this case proceed with the trial. 
Upon reconvening the court proceeded with the trial and acquitted the accused of 

both charges. File 26251-10968:6, Sec. Navy, November 16, 1915; G. C. M. Rec. No. 
31331; C. M. O. 49, 1915, 16-20. 

40. Same— The accused (a coal passer) was directed to report to the commanding officer 

of the U. S. S. Oneida for duty as shinkeeper on board that vessel. The U. S. S. 
Oneida was, under the provisions of the Act of August 3, 1894 (28 Stat. 219), as amended 
by the Act of May 11, 1898 (30 Stat. 404), transferred to the Naval Militia of the Dis- 
trict of Columbia. An officer of the Naval Militia was. by Special Order No. 9 of 
the Brigadier General of the District of Columbia Militia, dated February 26, 1900, 
given command of the Oneida, with directions to superintend the general repairs to 
that vessel. The accused, having been instructed by this Naval Militia officer in 
command of the Oneida to perform certain work on the pilot house of the Oneida, 
refused so to do, thus refusing duty to which he had been regularly assigned when 
detailed as shipkeeper on board that vessel. The accused was tried by a general 
court-martial of the Regular Navy and found guilty of " Conduct to the prejudice of 
good order and discipline." C. M. O. 132, 1901. 

41. Same— A machinist's mate was detailed to duty on board the U. S. S. Yantic 

which had been loaned to the Naval Militia of the State of Michigan. He was t ried 
by general court-martial convened by the Secretary of the Navy for "Conduct to 
the prejudice of good order and discipline," the specificat ions alleging that he used 
abusive, profane and threatening language toward the Naval Militia officer who was 
the executive officer of the Yantic, and found guilty. G. C. M. Reo. 30823. 

42. "System of discipline"— As provided in the act of Aucnst 29, 1916, defined and dis- 

cussed. File 8124-55, J. A. G., Oct. 17, 1916. See also System of Discipline. 



408 NAVAL MILITIA. 

43. Vessels loaned to Naval Militia by Regular Navy— In accordance with the pro- 

visions of the Constitution and of the laws enacted in pursuance thereof, the Presi- 
dent, in cases not affecting the execution of the laws or the protection of the property 
of the United States, may use the military or naval forces of the United States within 
the boundaries of the several States only on application of the legislature of the State, 
or, in case the legislature canno t be convened, on application of the governor. In other 
words, it is considered that the President, except as indicated, is not legally authorized 
to use, or permit to be used, the naval forces under his command to assist any par- 
ticular State in the maintenance of law and order within its boundaries. As a naval 
vessel is one of the integral and most important units going to make up the naval 
forces of the United States, it would seem that this prohibition to the use of the naval 
forces would extend to such an important part thereof as a naval vessel that is armed 
and equipped for war. 

Should occasion ever arise in the future making desirable the use of the Montgomery 
to quell "riots, insurrection, or defiance of civil law within the State limits, it is con- 
sidered that the only lawful manner in which the vessel could be so used would be in 
accordance with the provisions of the Constitution, upon application of the legis- 
lature or of the executive (when the legislature cannot be convened), made to the Presi- 
dent. File 4570-194, Mar. 15, 1915. 

44. Same — Naval vessels loaned to State militia organizations may be used only for the 

traioing and instruction of the Naval Militia. While it may perhaps be said that in 
a certain sense the use by a Stace of a naval vessel loaned to the Naval Militia for the 
purpose of quelling riots, insurrection, or defiance of civil law within the State limits 
is such a use as may tend to promote the efficiency of the Naval Militia that may be 
on board, it is nevertheless considered that such a use of a naval vessel, her armament 
and equipment, for what is in reality a purely local police work is a use entirely foreign 
to the promotion of the efficiency of the Naval Militia as contemplated by the act of 
February 16, 1914 (38 Stat. 283). File 4570-194, Mar. 15, 1915. 

The Naval Militia act ? approved February 16, 1914 (G. O. No. 77), section 2, is to 
be construed in connection with the act of August 3, 1894 (28 Stat. 219), and accord- 
ingly, the vessels so loaned to the States are to be used "only by the regularly organ- 
ized Naval Militia of the State for the purposes of drill and instruction." File 
4570^194, J. A. G., Dec. 19, 1914. 

The Solicitor held: That it would be unlawful for the State of Maryland "to utilize 
the Montgomery for patrol duty within the State and if necessary in silencing and dis- 
persing riots and insurrections on the shores bordering her waters." The Mont- 
gomery was loaned to Maryland under agreement dated March 10, 1915, covering the 
loan of a vessel in "reserve commission." File 4570-194, Op. Solicitor, Mar. 15, 1915. 

45. Witnesses before naval courts-martial— A Naval Militia member subpoenaed as a 

witness before a naval court-martial is not thereby called into the service of the United 
States under the provisions of Article I, sec. 8, clause 15 of the Constitution, and the 
act of February 16, 1914, sec. 3 (38 Stat. 284). He is not, therefore, by virtue of such 
subpoena entitled to the pay and allowances provided for the Naval Militia when 
called into the service of the United States. File 26276-119:3, J. A. G., Jan. 26, 1916. 
See also Naval Militia, 46. 

46. Same— A member of the Naval Militia subpoenaed as a witness before a naval court- 

martial when his organization is not in the service of the United, States is in the 
status of a civilian witness, not in Government employ, and he is entitled to fees and 
mileage accordingly. File 26251-10968:9, Sec. Navy, Dec. 1, 1915; 26276-119:2, J. A. G., 
Dec. 21, 1915; Dec. 1, 1915; 26276-119, Sec. Navy, Dec. 22, 1915; C. M. O. 49, 1915, 26. 
See also Naval Militia, 45. 

NAVAL OBSERVATORY. 

1. Naval station — The Naval Observatory is a naval station, and the Superintendent of 
the Naval Observatory is the commandant of a naval station within the meaning 
of the act of January 25, 1895 (28 Stat. 639), " authorizing certain officers of the Navy 
and Marine Corps to administer oaths" as amended by the act of March 3, 1909 (31 
Stat. 1086). File 19037-45, May 26, 1914. See also File 15924, Apr. 3, 1903; 26509-97, 
Feb. 4, 1913. 

NAVAL OFFICERS. See Officers. 

NAVAL OPERATIONS, CHIEF OF. 

1. Commission for. See File 22724-33, J. A. G., Aug. 22, 1916. 



NAVAL RESERVE FORCE. 409 

NAVAL PRISON'S. See also Pbisons. 
1. Printing press for— Requested. See Printing Press. 

NAVAL PROVING GROUND, INDIANHEAD, MD. See Jurisdiction, 83-84. 

NAVAL RECORDS. 

1. Names, change of. See Name, Change of. 

2. Nation's history— Important part of. See Name, Change of, 5. 

3. Records of the department. See Records of the Department. 

NAVAL RESERVE. 

1. Marine Corps— The Comptroller of the Treasury Department in a decision dated 

April 2, 1915, stated, in part, "I therefore advise you that service in the Marine Corps 
may be included in computing the service of members of the Naval Reserve." (See 
act of Mar. 3, 1915, 38 Stat.; 22 Stat., 472, 473, c. 97; U. S. v. Dunn, 120 U. S., 249; Wilkes 
v. Dinsman, 7 How., 89). File 28550-1 and 28550-1:2, J. A. G., Apr. 5, 1915; C. M. O. 
16, 1915, 6. 

2. Same— The act of March 3, 1915 (38 Stat. 940) establishing a Naval Reserve did not 

authorize the establishment of a Marine Corps Reserve, since the language of this 
law is used in the restricted sense, applicable only to the Navy proper. File 5460-81, 
J. A. G., May 12, 1916. But see Marine Corps Reserve, 2. 

3. Messmen, signalmen, etc. — Detail of Naval Reserve members as messmen, signalmen, 

etc.— Extra compensation for. File 28550-10, J. A. G., June 15, 1916. 

4. Service "in the Navy" — Service in the Naval Reserve is not service "in the Navy" 

within the meaning of the Executive order, November 27, 1906 (published in G. O. 
34, Nov. 28, 1906), and therefore a citizen of the United States whose last discharge 
from the Regular Navy was by reason of expiration of enlistment, and who thereafter 
enlists in the Naval Reserve and is discharged therefrom within a year, is entitled on 
reenlistment in the Regular Navy to the benefits of said Executive order. This 
decision is an original construction of the act of March 3, 1915 (38 Stat., 941). Comp. 
Dec, Aug. 2, 1916; File 26254-2081. 

5. Time of peace, service in— In construing that part of the Naval appropriation act 

approved March 3, 1915 (38 Stat. 941)_, reading as follows— " Members of the Naval 
Reserve may, in time of peace, be required to perform not less than one month's active 
service on board a vessel of the Navy, during each year of service in the Naval Reserve, 
and such active service shall not exceed two months in any one year" — it was held: 

"1st. That a member of the Naval Reserve may be required to serve less than one 
month's active service on board a vessel of the Navy in time of peace, but that, as a 
general rule, the legislative expression on this point should be observed. It follows 
that a member of the Naval Reserve may be ordered to active service on board a ves- 
sel of the Navy for one month and be discharged from such active service at the end 
of a shorter period of time at the discretion of the bureau in case it is either necessary 
or desirable; furthermore, in case it is necessary or desirable to the efficiency of the 
Naval Reserve, a member of the Naval Reserve may be called into active service for 
less time than one month, there being no provision requiring or suggesting that the 
one month's service be rendered at any one time; and 

"2d. That a member of the Naval Reserve can not be allowed to render voluntary 
active service exceeding two months in any one year, but if the legislative requirement 
is substantially observed, the fact that under stress of conditions a man might neces- 
sarily be detained slightly in excess of two months in any one year would not be 
in violation of the statute." File 28550-3, J. A. G., May 12, 1915; C. M. O. 49, 1915, 27. 

6. Transportation of applicants for enlistment— The transportation of applicants for 

enlistment in the Naval Reserve from the substations to the main recruiting stations 
and return may be paid from the appropriation for the Naval Reserve made by the 
act of March 3, 1915 (38 Stat. 941) which reads in part as follows: "The sum of $130,000 
is hereby appropriated to carry into effect, the formoins; provisions relative to a naval 
reserve." (See Comp. Dec, Dec 31, 1915.) Fite 28550-11, Sec. Navv, Dec. 13, 1915; 
C. M. O. 49, 1915, 26-27. 

7. Went out of existence— "By operation of law on Ausnist 2-^, 19'6." File 28550-20, 

J. A. G., Oct. 4, 1916. See also Comp. Dec, Sept. 22, 1916, No. 692. 

NAVAL RESERVE FORCE. 

1. Fleet Naval Reserve— Retainer pay. File 28550-20, Sec. Navy, Nov. 1, 1916. See aho 
File 28550-20:1, J. A. G., Nov. 10, 1916. 



410 NAVIGATION. 

NAVAL RETIRING BOARDS. 

1. Constitution of — Whenever any officer on being ordered to perform the duties appro- 

priate to his commission reports himself unable to comply with such order, or when- 
ever, in the judgment of the President, an officer is incapacitated to perform the 
duties of his office, the President, at his discretion, may direct the Secretary of the 
Navy to refer the case of such officer to a board of not more than nine nor less than five 
commissioned officers, two-fifths of whom shall be members of the Medical Corps of 
the Navy. Said board, except the officers taken from the Medical Corps, shall be 
composed, as far as may be, of seniors in rank to the officer whose disability is inquired 
of. (Sec. 1448, R. S.) 

2. Rank of members— The proceedings of a retiring board were held to be fatally irregular 

and erroneous, and the proceedings were set aside. One of the nonmedical members 
-was junior in rant to the candidate, who appeared before the board pursuant to an 
order issued by the Chief of the Burau of Navigation, whereas the department's precept 
convening the board, was for the examination of ''such officers as may be ordered by 
the Secretary of the Navy to appear before it." Recommended that the following 
paragraph be added to the department's precepts convening retiring boards: "The 
board will not examine officers who are senior to any nonmedical member of the 
board without specific instructions from the Secretary of the Navy in each case." 
File 26253-257, J. A. G., Jan. 10, 1913, approved by Sec. Navy, Jan. 10, 1913. 

3. Section 1452 Revised Statutes — Relating to retiring boards in the Navy, provides 

that, "A record of the proceedings and decisions of the board in each case shall be 
transmitted to the Secretary of the Navy, and shall be laid by him before the Presi- 
dent for his approval or disapproval, or orders in the ease.'' For a case where the Presi- 
dent neither approved nor disapproved, see File 26253-275, Sec. Navy, Apr. 4, 1913. 

NAVAL WAR COLLEGE. See also Aliens, 12. 

1. Brazil. See Naval Attaches, 1. 

2. Established— Naval War College established. See G. O. 325, Oct. 6, 1884. 

NAVIGATION. See also Collision; Commanding Officers; Officer-of-the-Deck; 
Watch Officers. 

1. " Aids to navigation." C. M. O. 27, 1916. See also Navigation, 17. 

2. Asiatic station— Gunboats on. See Gunboats, 1. 

3. Beacons. See Navigation, 17. 

4. Bearings on lights. See Navigation, 10. 

5. British Navy— Loss of the Victoria. G. C. M. Rec. 323S9, pp. 87-88. 

6. Buoys. See Navigation, 7, 17, 19, 31, 32, 42, 94. 

7. Channel buoys. C. M. O. 27, 1916. 

8. Charts— Failing to make use of (C. M. O. 24, 1911; 17, 1913); Navigation without use 

of (C. M. O. 24, 1916, 2); Commanding officer failed to supply the officer of the deck 
with proper chart (C. M. O. 29, 1909); Navigating chart (See Navigation, 71); Coast 
Survey and Hydrographic Office Charts (See Charts); Current charts (C. M. O. 24, 
1912, 2); Unreliable charts (see Navigation, 17). 

9. Chart board. C. M. O. 27, 1916, 2. 

10. "Checking the position"— Navigator tried by general court-martial for failing to use 

the ordinary and simple methods of navigation by checking the position bv means of 
bearings on a light. C. M. O. 24, 1911, 2. See also G. C. M. Rec. 323S9. 

11. Coast pilot information. G. C. M. Rec. 32389. 

12. Collision. See Collision. 

13. Commander in chief— Responsibility of commander in chief as to navigation. See 

Navigation, 31. 

14. Commanding officer— Responsibility of with reference to navigation of the vessel he 

commands. See Collision, 19; Commanding Officers, 38; Navigation, 15-19, 31, 
53, 57, 71, 72,82,86,88. 

15. Same— The commanding officer of a vessel can not relieve himself from the respon- 

sibility for the safe conduct of the vessel under his command without a definite protest 
when he realizes that the vessel, in obedience to an order, is being steered from an 
uncertain position into known danger. G. C. M. Rec. 32389; File 26251-12077, J. A. G., 
Aug. 2, 1915, approved by Sec. Navy Aug. 16, 1916. See also Navigation, 31. 

16. Same— The department considers that the good of the naval service requires the com- 

manding officer of every naval vessel to be held to very strict responsibility for the 
safety of the ship and its officers and men. 



NAVIGATION. 411 

The commanding officer's obligation of vigilance was, in the department's judgment , 
not lessened, but rendered more imperative by the facts that the vessel was on a 
"shake-down" cruise and that he had no previous personal a quaintance with the 
navigator. 

How far the navigator may have been in fault need not be considered in this case, 
his negligence or errors can not excuse or paUiate those of the commanding officer. 
CM. 0.53, 1906. 

17. Same— Was charged with running his ship upon a rock, etc., and sentenced to be 

dismissed, which was confirmed by the President. The vessel was at the time of the 
accident cruising on special service in proximity to dangerous coasts which were 
unprovided with lighthouses, beacons, buoys, or other ordinary aids to navigation, 
demanded special vigilance on the part of the accused. The accused was aware that 
the charts of the locality were unreliable and the currents uncertain, but instead of 
exercising constant and unremitting care in navigating his vessel, he failed, while 
approaching Tugidak Island, Alaska, to lay a course which would bring his vessel 
clear of that island or to cause soundings to be taken as required in such cases by the 
Navy Regulations. About half past three of the morning of the accident, more than 
an hour before the vessel struck, land on an unexpected bearing was reported to the 
accused, and the officer of the deck subsequently reported to him that "the engines 
had been slowed to ease the strain on the topsails," which reports, under the condi- 
tions then existing, should have made him aware that his presence on deck was 
imperatively required. In consequence of the absence from his post of duty of her 
commander, the orders for the management of the vessel were not promptly or clearly 
given, the sails were not properly handled, the engines were stopped, and after nearly 
three-quarters of an hour had been consumed in the attempt to change the course of 
the vessel, she drifted upon the rocks. During all this time the accused remained in 
his cabin, and did not appear on deck until the vessel struck. C. M. O. 7, 1893, 3-4. 

18. Same — Was charged with "Through negligence suffering a vessel of the Navy to be 

run upon a shoal." The court found him guilty of "Suffering a vessel of the Navy 
to be run upon a shoal." The findings as recorded amount to a declaration on the 
part of the court that an officer who disregards substantially all the precautions 
prescribed by the regulations relating to the handling of a naval vessel is not guilty 
of negligence. The department can not concede the principle that an officer may 
wholly disregard requirements of the regulations and ordinary precautions intended 
to protect the safety of the vessel under his command and yet avoid responsibility, 
and deems it necessary to emphasize the vital importance of the unfailing observance 
of one of the greatest safeguards known to seamen, namely, taking soundings. In 
this case an officer, clearly guilty of very serious negligence, by the strained and 
illogical conclusion reached by the court, escaped adequate punishment for his offenses. 
C. M. O. 43, 1906. See also Navigation, 17, 82. 

19. Same— Is guilty of gross negligence— Where a commanding officer was in plain sight 

of range lights which indicated a safe course through the channel, but ignored them 
and attempted to pilot his vessel at night by buoys, which are frequently out of place, 
he is guilty of gross negligence. C. M. 0. 15, 1905. 

20. Concurrent responsibility. C. M. O. 24, 1916, 4; Navigation, 57. 

21. Current— Failing to allow for. C. M. O. 2, 1915; 3, 1915. 

22. Same— - Navigator failed to make use of the information furnished by official publica- 

tions in regard to the currents, in consequence the vessel was stranded upon a shoal. 
C. M. O. 24, 1916, 1. See also Navigation, 28. 

23. Same— Variable currents (C. M. O. 27, 1916, 1); Tidal currents (G. C. M. Rec. 323S9): 

Uncertain currents (see Navigation, 17). 

24. Current charts — The navigator navigated the vessel without the use of the very 

important current charts supplied for the waters in question. C. M. O. 24, 1916, 2. 

25. Danger— There are times when danger need not be considered. Sec Collision, 6. 

26. Same— Duty of commanding officer when a source of possible danger is reported to him. 

See Collision, 19. 

27. Dead reckoning— Errors in. C. M. O. 2, 1915; 3, 1915; G. C. M. Rec. 323S9; Navi- 

gation, 28, 31. 

28. Same— A navigator in plotting his course by dead reckoning failed to make use of the 

information furnished by official publications in regard to the currents, in consequence 
of which the vessel was stranded upon a shoal. C. M. O. 24, 1916, 1. See also Navi- 
gation, 22. 

29. Derelicts. See Derelicts. 

30. Destroyers— Navigation of torpedo-boat destroyers. See Navigation, SS. 



412 NAVIGATION. 

31. Division Commander— A division commander was tried by general court-martial 
and found guilty of the charges of "Improperly hazarding a vessel of the Navy, in 
consequence of which she was run upon ashoal and seriously injured," and "Violation 
of a lawful regulation issued by the Secretary of the Navy." 

The evidence adduced in this case shows that the commanding officer of the San 
Francisco had been directed to proceed with the vessel under his command to the en- 
trance of Great Round Shoal Channel. At 12.07 a. m. the ship arrived at the point 
which by reckonings should have been close to the entrance buoy. Upon arriving 
at this point the division commander was to decide whether to proceed through the 
channel or to go outside around Nantucket Shoal, the decision being dependent upon 
weather conditions. The facts may be stated as follows: 

The division commander is weighing the alternatives of the situation in his mind 
and is about to decide as to the course of action when, at 12.14 a. m. the officer of the 
deck reports sighting a flashing light bearing 225°; the captain doesn't see it; the 
navigator doesn't see it; no lookouts report it. The division commander, feeling 
that this light is the one for which all have been searching, gives the order, at 12.15, 
"head for the light, captain." 

The commanding officer enters no protest to the order of the division commander 
but gives the necessary orders; the ship turns slowly to starboard; by order of the 
commanding officer speed is increased to two-thirds in order to expedite her swinging, 
and finally is steadied on 231°. Meanwhile the commanding officer reiterates his 
inability to see the light but steadies the ship one-half point away from the bearing 
given by the division commander in order to avoid certain foul ground near buoy 
No. 4, which he at that time thought the light marked. From the evidence recorded 
it appears that no doubt arose in the mind of any person on the bridge as to whether 
or not the light was on one or the other of the two channel buoys; the only question which 
seems ot have arisen in the mind of the commanding officer was as* to whether or not 
the light actually existed. 

Though the navigator plotted the new course (231°) on the chart from the dead 
reckoning position at 12.15, and though he found it passed over a shoal about 2 miles 
distant and varied about 25° from the course of the channel, and though this dis- 
crepancy was observed by both the commanding officer and the division commander, 
no action was taken by any .person, and the course was followed until th- San Francisco 
took ground at 12.41 a. m. 

No'issue of fact was involved in this case. The Navy Regulations bearing upon 
the issue are as follows: 

R-1606. " The commander in chief shall direct the course to be steered by the fleet 
when at sea, and is responsible for its safe conduct." 

R-20S1 (5). "Unless in company with a senior, he [the commanding officer] is 
responsible for the course steered, and he is always responsible for the safe conduct 
of the ship." 

The Judge Advocate General placed upon the record the following indorsement: 

"The proceedings and sentence in this case are legal; the findings on the second 
charge are recommended for approval; the specification of the first charge was proved. 

"The question of whether or not Commander * * *, [the accused] in giving an 
order to head for a certain light and in permitting a course to be steered for that light 
under existing conditions, was guilty of 'Improperly hazarding a vessel of the Navy,' 
is so intimately connected with the policy of the Navy Department in the fixing of 
responsibility and the division of responsibility as between flag officers and command- 
ing officers, that the case is referred to the Bureau of Navigation through the Chief of 
Naval Operations." 

The Chief of Naval Operations in his indorsement upon this case set forth his views 
in effect, viz: 

That Navy Regulations, 1913, R-1606— 

"The commander in chief shall direct the course to be steered by the fleet when at 
sea, and is responsible for its safe conduct," does not apply in the case of a single ship, 
and was not intended to make a flag officer responsible for the detailed handling of a 
ship on which he is a passenger; that under such circumstances a flag officer is not 
charged with responsibility unless in his opinion the commanding officer of the ship 
is incompetent to properly discharge his duties; however, that a flag officer who, as 
in his case, interferes with the navigation of a ship on which he is a passenger, thereby 
voluntarily assumes joint responsibility for the safe conduct of the ship and under 
such circumstances should be held responsible for the conseauences. 



NAVIGATION. 413 

That at the same time the last clause of Navy Regulations, 1913, R-2081 (5)— 
"Unless in company with a senior, he is responsible for the course steered, and he 
is always responsible for the safe conduct of the ship," places the responsibility for the 
safe conduct of a vessel clearly and definitely upon the commanding officer under all 
circumstances; that the latter, with the assistance of his navigator, the officer of the 
deck, the quartermaster, the leadsmen, lookouts, and other means at his disposal, 
should have given the benefit of such assistance and information to the division com- 
mander and made it clear to him that he was taking risks in directing the ship to be 
steered as stated; that it was quite as clearly the duty of the commanding officer of 
the San Francisco to inform the division commander of the risk he was running by 
steering the course given, as it was the duty of the navigator to so inform the com- 
manding officer : and the responsibility can not be avoided in either case. 

The situation involved in this case is not covered by the Navy Regulations, but this 
fact in no wise relieves an officer of culpability for the neglect of duty which his 
seniority may impose upon him. Not only is it impracticable to anticipate in the 
Navy Regulations every contingency which may possibly arise, but an attempt to 
do so would not be conducive to the proper development of character and officer-like 
qualities. Neither is it considered in the interests of efficiency to restrict too closely 
the performance of duty by officers, especially those of the higher ranks. Officers 
have duties and obligations, imposed upon them by the commissions which they 
hold and the positions which they occupy, which are as binding as express provision 
of the Navy Regulations could be. The language used in an officer's commission 
imposes upon him the responsibility for the efficient performance of duties of his grade 
and no court would be justified in relieving of culpability an officer who failed to 
perform such duties as were imposed by the broad terms of his commission and by 
the customs of the service, merely because such duties were not definitely enumerated 
in the Navy Regulations. 
The Chief of the Bureau of Navigation placed upon the record an indorsement: 
"Recommending approval of the findings and sentence of the general court-martial." 
The Secretary of the Navy approved the proceedings, findings, and sentence. 
C. M. O. 27, 1916. 

32. Entrance buoys. C. M. O. 24, 1916, 3. See also Navigation, 31. 

33. "Estimating distances." G. C. M. Rec. 32390. 

34. "Fixes." G. C. M. Rec. 32390; File 26251-12138, J. A. G., Aug. 8, 1916. See also Navi- 

gation, 57. 

35. Fixing position of ship— A navigator failed to utilize well known and generally 

accepted methods of fixing the position of a ship. C. M. O. 24, 1916, 1. See also 
C. M. 0. 18, 1913. 

36. Flag officers— With reference to navigation. See Navigation, 31 (p. 413). 

37. Flagships— Navigation of. See Navigation, 31. 

38. Flashing lights. C. M. O. 27, 1916 ,3. See also Navigation 31 (p. 412). 

39. Foggy and misty weather. C. M. O. 27, 1916; G. C. M. Rec. 32389. 

40. "Foul ground." C. M. O. 27, 1916. See also Navigation, 31 (p. 412). 

41. "Foul water." C. M. O. 27, 1916; G. C. M. Rec. 32389. 
42 Gas buoys. See Gas Buoy. 

43. Grounding ship. C. M. 0. 15, 1905, 1. See also Geounding Ship. 

44. Same— Failing to enter on ship's logbook that ship went aground. C. M. O. 12, 1912. 

45. Gunboats — Navigation of gunboats on Asiatic station. See Gunboats. 

46. Handlead. C. M. O. 24, 1916, 3; Navigation, 57. 

47. "Haphazard navigation." See Navigation, 88. 

48. "Inevitable accident." See Collision, 12. 

49. Lead— Use of the lead as a means of checking the position of the vessel. C. M. O. 24. 

1911, 2. See also Navigation, 82. 

50. Leadsman. C. M. O. 27, 1916, 5. 

51. Light draft— Navigation of vessels of light draft. See Navigation, 82. 
52 Lookouts. See Navigation, 31. 

53. "Mere guesses" — Commanding officer permitted courses to be steered which were 

"little better than mere guesses." C. M. O. 9, 1911, 2. 

54. Misty and foggy weather. C. M. O. 27, 1916; G. C. M. Rec. 323S9. 

55. Navigator— Tried by general court-martial. C. M. O. 24, 1911; IS, 1913; 33, 1913; 3, 

1915; 24, 1916. 

56. Same— Errors or negligence of navigator can not excuse commanding ollicer. C. M. O. 

53, 1906. See also Navigation, 16. 



414 NAVIGATION. 

57. Same— Responsibility of— The accused (lieutenant, junior grade) was tried and 
acquitted by general court-martial on the following charges: 

Charge I. — Culpable inefficiency in the performance of duty (one specification 
alleging that the accused, as navigator of the San Francisco, in plotting his course by 
dead reckoning from 9 p. m. to 12 p. m. on May 16, 1916, failed to make use of the 
information furnished by official publications in regard to the currents, in consequence 
of which the San Francisco was stranded upon a shoal at about 12.41 a. m. May 17, 
1916, in about latitude 41° 21' 30" N., longitude 69° 48' 40" W.) 

Charge II. — Culpable negligence and inefficiency in the performance of duty (four 
specifications alleging a failure to utilize in navigating the San Francisco certain 
well known and generally accepted methods of fixing the position of a ship, and that 
he failed to notify and warn the commanding officer when, in his opinion, the ship 
was standing into danger, as the result of which the San Francisco ran upon a shoal 
at the time and place set forth under Charge I.) 

In reviewing this case several questions arise, and it is uncertain upon what ground 
the court arrived at an acquittal. These questions may be considered as follows: 

(1) The responsibility of the navigator under the circumstances. 

(2) Whether or not he was negligent and inefficient in the actual navigation of the 
ship. This in turn divides itself into (a) Navigation of the ship before 12.07 a. m., and 
(b) that subsequent to 12.07 a. m. 

(3) Whether or not, as a consequence of such neglect and failure, the San Francisco 
stranded. 

Responsibility of the navigator.— The Navy Regulations, 1913, R-2401, state that 
"the navigating officer is the officer detailed by the department to perform the navi- 
gation duties and is the head of the navigation department of the ship." It also 
states that "the navigating officer shall be senior to all watch and division officers." 
It was shown by the evidence that the accused was not detailed by the department 
but was detailed, at his own request, by the captain of the ship as navigator, and that 
he was not the officer upon whom by rank the navigation duties would have auto- 
matically devolved. Certain evidence was also introduced showing that upon 
graduation he stood low in his class and low in the subject of navigation, and that 
he had not received instruction in navigation since his graduation. 

The question of his standing in the subject of navigation and the absence of instruc- 
tion since he became a commissioned officer is believed to be irrelevant. An officer 
bearing a commission must be accepted as a responsible person and must be held 
accountable for the proper and efficient performance of duties commensurate with his 
grade as recognized by Navy Regulations. The only question remaining under this 
heading is whether or not the court considered that he was legally assigned to the 
duties of navigator in the sense of being responsible for the efficient performance of 
those duties. The duties of navigator of a vessel such as the San Francisco are com- 
mensurate with the grade of junior lieutenant, and, despite the provision of the Navy 
Regulations above quoted, the accused was responsible for the proper performance 
of these duties after they were assigned him by the commanding officer; it is not 
believed that the court acquitted him on this ground. 

Methods of navigation of the ship— (a) Before 12.07.— Without reviewing in detail all 
of the evidence concerning the navigation of the ship, the evidence shows that the 
San Francisco was navigated from the last fix to 12.07 without the use of the very 
important current charts supplied for the waters in question, and as a consequence 
arrived at the entrance to Great Round Shoal Channel at approximately 11 .54 instead 
of 12.07. The evidence shows that working forward from the last fix and applying 
the current, the track of the San Francisco was almost identical with the track 
obtained by working back from the position of grounding; and working forward it 
was shown that she would have arrived off the entrance to the channel at 11.53, while 
working back from the position of grounding showed that she must have arrived off 
the entrance at 11.54; in other words, the evidence shows that had the current chart 
which was supplied to the ship for that purpose been utilized in the run subsequent 
to the last fix, her position would at alftimes have been accurately known, and at 
11.53 or 11.54 either the entrance buoys would have been sighted or else a course to 
the eastward would have been laid at that time. 

(b) After 12.07.— The evidence shows that at 12.14, on sighting a light to the south- 
ward and westward, toward which, under orders of the division commander, the ship 
was steered, with the exception of soundings by the hand lead, ordinary methods of 
navigating and safeguarding the ship were neglected, and though the navigator 
realized the uncertainty of his position, he failed to advise and warn the captain as to 
his opinion concerning the danger of the course then being pursued, as is required by 



NAVIGATION. 415 

Navy Regulations. Navy Regulations, 1913, R-2404 (3), requires that "If the com- 
manding officer is conning and the navigator thinks the ship is running into danger, 
he shall so inform the commanding officer and advise him as to a safe course to he 
steered." It is believed that the full pur port and value of this regulation is frequently 
overlooked. This warning which is required by regulations is as important a portion 
of the duties of navigator as are the ordinary methods of piloting; this regulation is 
not intended to be permissive, it is mandatory. The keeping afloat of a vessel of 
war is a duty so important that the Government, in order to safeguard itself and insure 
a check against those unaccountable lapses which sometimes occur in any individual, 
however proficient he may be, has prescribed a concurrent responsibility in regard 
to the navigation thereof. 

The department considers that in cases of danger, or in cases where the navigator 
feels uncertain of his position, the requirement above quoted of article 2404 is an addi- 
tional safeguard intended to bring forcibly to the attention of the commanding officer 
the fact that the position of the ship is not known to the navigator. Though the 
evidence shows that both the division commander and the commanding officer were 
cognizant of the conditions subsequent to 12.07, this knowledge is not construed as 
relieving the navigator of responsibility for affirmatively informing the commanding 
officer of his opinion concerning the course then being steered ; and aside from all other 
navigational features subsequent to 12.07, the department considers that the failure of 
the navigator to make this protest was in itself negligence and inefficiency in the per- 
formance of his duties. 

Effect of navigational methods upon stranding of the ship.— If it is considered that the 
accused was inefficient in the navigation of the ship; that the methods used by him 
were not such that the Government has a right to demand of officers charged with 
this duty, then it may be stated, as a matter of law, that the final clause in each speci- 
fication to the effect that " in consequence of which neglect and failure the San Fran- 
cisco was stranded," is surplusage and is not an essential part of the specification. 
It is a portion of the specification which might have been omitted in framing the 
charges, or it might have been affirmatively omitted in the findings of the court; the 
question of whether or not the methods of navigation directly resulted in the stranding 
of the vessel is important only in so far as the quantum of punishment is involved. 
If it is considered that the accused was negligent and inefficient in his performance of 
duty as navigator, the culpability, in so far as the specification is concerned, is fully 
established entirely without the concluding clause. A navigator may be culpable 
and negligent and inefficient without involving the ship, even in danger of grounding. 
The fact of grounding therefore merely affects the gravity of the offenses. 

As stated above, it is not known upon which of the above grounds the court arrived 
at its acquittal. It is not believed that it was on account of lack of responsibility of 
the accused as navigator. It is not believed that the court considered that the 
navigational methods employed were such as the Government has a right to require 
of officers charged with that responsible duty. A careful review of the case leads to 
the conviction that the court acquitted him because of his comparative youth, and 
because he was associated on the bridge with the commanding officer and division 
commander, whom it appears were practically as familiar with the situation as was 
the navigator. If this is correct, in the opinion of the department such a verdict is 
not justified, does not protect the Government in the navigation of its vessels, would 
establish an undesirable precedent, and would not carry out the spirit of the Navy 
Regulations, which impose concurrent responsibility upon the navigator for the 
safety of the ship. Where concurrent responsibility is imposed by the regulations 
upon several individuals and an accident occurs, it is illogical to hold that a junior is 
guiltless because a senior was present. The concurrent responsibility which has been 
established by the Navy Regulations is an additional safeguard of the Government 
in keeping its ships afloat; not to recognize this in effect nullifies this feature of the 
regulations. In such cases an endeavor to place the burden of entire responsibility 
upon some one individual results in confusion and a miscarriage of justice. The onlv 
logical method is to hold each individual concerned responsible, not for the accident 
itself, but for neglect of such of his individual duties as may have contributed to the 
accident. 

For the above reasons the department considers that— 

(1) The accused was responsible for the efficient performance of duties of navigator 
which had been assigned to him by the commanding officer; 

(2) The methods of navigation employed by him, although they were perfectly 
known to the commanding olllcer and the division commander, were nevertheless 
not such as the Government can approve as being efficient; 

50756°— 17— 27 



416 NAVIGATION. 

(3) If the above be correct, he is culpable, whether or not they contributed directly 
to the grounding of the ship. 

In view of the above the department would, under ordinary circumstances, return 
the record, together with a statement of the law governing the case, to the court for a 
revision of its findings and acquittal. The court in this case, however, is composed of 
officers of high rank who have been absent from their regular stations, where urgently 
needed, for an appreciable length of time, and the convening of this court in revision 
would detain them further. The department, therefore, having in mind the best 
interests of the service at large, approves the proceedings, but disapproves the findings 
and acquittal. C. M. 0. 24, 1916. 

58. Same — "From a review of this case, the commander in chief observes that stress was 

laid on the inexperience of the accused and the fact that, as the commanding officer 
was on the bridge, he (the accused) had a very small part to perform in navigating 
the vessel. No matter who is conning a vessel, it is the plain duty of the officer acting 
as navigator to keep track of the courses steered and the run of the vessel; and if he 
fails to use the methods and instruments for fixing the position which are at his com- 
mand, and further fails to notify the captain when practicable that he believes the 
ship to be running into danger, he fails m his whole duty." C. M. O. 33, 1913, 1-2, 
quoted with approval by the Secretary of the Navy in C. M. O. 24, 1916. 

59. Navigating chart. See Navigation, 71. 

60. Navigational aids. (See Navigation, 88. 

61. Navigational lights. C. M. O. 24, 1911. 

62. Navigational methods. C. M. O. 24, 1916, 4; Navigation, 57. 

63. "Nerve"— On part of commanders of torpedo boats. See Collision, 6. 

64. Officer of the deck. See Officer-of-the-Deck; Orders, 48, 49. 

65. Orders— With reference to navigation by division commanders and commanders in 

chief. See Navigation, 15, 31; G. C. M. Rec. 32389, pp. 87-88. 

66. Outlying aids to navigation. C. M. O. 3, 1915. 

67. Overtaking another vessel— The officer of the deck was tried by general court-martial. 

He carelessly disregarded one of the simplest rules of the road. He overtook and ran 
into a much slower vessel in the open sea in broad daylight. C. M. O. 29, 1910. 

68. Patent log. See Patent Log. 

69. Pelorus. C. M. O. 27, 1916 2; G. C. M. Rec. 323S9, p. 6. 

70. Piloting at night. See Navigation, 19. 

71. Position of ship — Commanding officer failed to require the position of the ship to be 

accurately plotted on navigating chart in consequence of which neglect the ship ran 
on a reef. C. M. 0. 9, 1911. See also C. M. O. 24, 1911; Navigation, 10, 31, 72. 

72. Same — Commanding officer " failing to plot the position of the said ship on the chart, 

etc. G. CM. Rec, 32389. 

73. Precautions to avoid collision. See Collision, 17. 

74. Precautionary orders— By commanding officers. See Collision, 19. 

75. Range lights. See Navigation, 19. 

76. Rescue— If a naval vessel collides with another vessel the commanding officer must 

do all practicable to rescue persons from the other vessel. See Collision, 22; Com- 
manding Officers, 34. 

77. Responsibility, concurrent. CM. O. 24, 1916, 4. See also Navigation, 57. 

78. Responsibility of commanding officers. See Collision, 6, 19; Commanding 

Officers, 38; Navigation, 15-19, 31, 53, 57, 71, 72, 82, 86, 88. 

79. Rules of the road. C M. O. 33, 1905; 29, 1910, 2. See also Navigation, 67. 

80. "Shake-down" cruise. See Navigation, 16. 

81. Shifting berth. C. M. O. 9, 1913. 

82. Soundings— Inasmuch as unqualified approval of the court's action in this case might 

tend to establish the principle that an officer may wholly disregard requirements of 
the regulations and ordinary precautions intended to promote the safety of the vessel 
under his command and yet avoid responsibility, the department deems it necessary 
to emphasize the vital importance of the unfailing observance of one of the greatest 
safeguards known to seamen, namely taking soundings. 

Article 472, paragraph 1, Navy Regulations, 1900, prescribes as one of the command- 
ing officer's duties: ''When under way on soundings, he shall have casts of the lead 
taken frequently if necessary to verify the position." 

Under this regulation it is true that the commanding officer must assume the 
responsibility of determining whether frequent soundings are necessary to verify the 
position of his vessel, but if he fails to adopt this precaution when necessary he assumes 
the risk of disaster. The safety of his vessel bemg at stake, all doubt as to whether 
any precaution prescribed by the regulations ought or ought not to be taken should 



NAVIGATION. 417 

be resolved in favor of the precautionary measure. The vessel should be given the 
benefit of the doubt. 

It was contended by the defense that casts of the lead do not, in the case of small 
vessels of light draft, give warning of danger in sufficient time to be of value. The 
purpose of the clause of the regulations referred to, however, is not so much to provide 
ameans of disclosing imminent danger as to fix the position of the vessel with a view 
to avoiding such dangers. 

It is noted that the discretion vested in the commanding officer by this regulation is 
limited to the question of the necessity of soundings in order to verify position. If 
the position of the vessel is known beyond question,_ frequent soundings are unneces- 
sary and are not required to be taken. The qualifying words of the regulation, how- 
ever, do not go beyond this. The requirement is not that frequent soundings shall 
be taken if practicable. There is no exception based on the difficulty of taking sound- 
ings in the case of a small vessel laboring in a heavy sea. While the testimony intro- 
duced in this case tends to show that soundings made under the existing conditions 
would have been difficult and their results of questionable value, it is manifestly 
the duty of the officer responsible for the safety of a vessel to make at least the attempt 
in such cases to avail himself of all safeguards prescribed by the regulations. 

With due regard for the difficulties existing m this case — a small vessel laboring in 
a heavy sea— the department is advised and the evidence before the court indicates 
that soundings could have been taken, and the department has concluded, after 
careful consideration, that it was clearly the duty of the accused to bring the vessel 
head to sea and obtain the best soundings practicable in the circumstances. Whether 
or not this would have prevented the loss of the vessel, the soundings obtained would 
have had some value, and the action would, at all events, have shown that the vessel 
was lost in spite of all seamanlike precautions. 

There being extenuating circumstances in this case, however, and not wishing to 
act in the direction of severity, against the opinion of a court composed of seagoing 
officers of experience, the proceedings and, subject to the foregoing remarks, the 
findings and acquittal in the case are approved. C. M. O. 50, 1903, 3-4. See also 
C. M. O. 30, 1909; 24, 1911; 2, 1915; 24, 1916; G. CM. Rec. 32389; Navigation, 17, 18. 

83. "Submerged and unmarked wreck." G. C. M. Rec, 32390; File 26251-12138, 

J. A. G., Aug. 8, 1916. 

84. Tidal currents. G. C. M. Rec. 32389. 

85. "Timing the flashes of a light." C. M. O. 27, 1916, 2. 

86. Torpedo boats — Torpedo boat, standing for an anchorage in the vicinity of four other 

vessels of the flotilla, was not informed by signal or otherwise, by the flotilla com- 
mander, as to where it should anchor, or that there had been any change in the dis- 
position of the vessels of the flotilla since the early morning when it departed. Held: 
This omission of duty on the part of another does not relieve the commanding officer 
of the torpedo boat of the responsibility of handling his vessel, on such occasion with 
great precaution and care. C. M. O. 5, 1906. 

87. Same— "Nerve" in maneuvering. See Collision, 6. 

88. Torpedo-boat destroyers — "The commander in chief observes that the accused in 

this case plead guilty to both charges, and that considerable evidence in extenuation 
was introduced, mainly to the effect; that the ordinary methods of navigation are 
employed with difficulty on destroyers making high speeds. 

"The present case presents to the commander in chief an example of extremely 
careless and haphazard navigation. Modern destroyers are large and costly torpedo 
vessels carrying comparatively large crews; and their value, and the number of lives 
on board, are certainly sufficient reasons for demanding careful navigation. 

"The * * * left a known anchorage, had several navigational aids in plain 
sight, and yet, after running only 7 or 8 miles in smooth waters, not only failed 
to pass safely through a wide and deep passage, but missed it by over a mile. 
If this is an example of the methods used in other vessels of her class the commander 
in chief can not but fear the consequences. To him the grounding is an evidence of 
gross carelessness— an utter disregard of the most ordinary precautions used by 
seafaring men — which, had loss of life occurred or the vessel been seriously injured, 
would have been absolutely without extenuation. Those officers who occupy 
similar positions of responsibility should not fail to heed the warning against care- 
lessness and overconfidence." C. M. O. 32, 1913, 1-2. 

89. Typhoon signals. C. M. O. 7. 1915. 

90. Warning— Of bad weather. See Navigation, 91. 



418 NAVIGATION. 

91. Watch— "Failing to keep a regular and proper watch either for signals or for radio 

messages," warning oi bad weather. G. C. M. Rec. 32390. 

92. Watch officers. See Drunkenness, 99; Watch Officers. 

93. Weather— Foggy and misty weather. C. M. O. 27, 1916; G. C. M. Rec. 32389. 

94. Whistling buoy. G. C. M. Rec. 32389, p. 6. v 

95. Wrecks— "Submerged and unmarked wreck." G. C. M. Rec. 32390; File 26251-12138; 

J. A. G., Aug. 8, 1916. See also Wrecks. 

NAVIGATOR. See Navigation, 55-58. 

NAVY NURSE CORPS. See Bureau of Medicine and Surgery, 6; Medical Offi- 
cers of the Navy, 11. 

NAVY PAT OFFICE. 

1. Washington, D. C, at — Isnotone of the "bureaus and offices" of the Navy Depart- 
ment within the meaning of a contract to deliver ice to the Navy Department and 
its various bureaus and offices. File 6482, July 26, 1904. 

NAVY PAY TABLES. 

1. Deck Courts — Navy pay tables should be disregarded in adjudging loss of pay by deck 
court. CM. 0.34, 1913, 6. 

NAVY REGISTER. 

1. Printing of— Section 73 of the public printing act of 1895 (28 Stat. 616) -provides for the 

printing of 1000 copies of the Navy Register for the use of the House of Representa- 
tives, and 500 for the Senate. The Secretary of the Navy is not required, by law, to 
publish a Navy Register. 15 J. A. G., 96. 

2. Status of officer — The position of an officer's name in the official register of the Navy 

does not affect such officer's status nor confer upon him or any other officer any right 
of promotion or advancement of rank. File 5038-18, 19, J. A. G., Feb. 29, 1912. See 
also File 27231-8, Feb. 7, 1911. 

NAVY REGULATIONS. See Regulations, Navy. 

NAVY YARD. 

1. Command — Succession to. See Command, 14, 15. 

NEGLECT OF DUTY. 

1. Enlisted men— Charged with. C. M. O. 5, 1911, 7; G. C. M. Rec. 31705; 31714; 31857; 

31930. 

2. Officers— Charged with. C. M. O. 21, 1908; 26, 1908; 35, 1908; 30, 1909; 19, 1910; 6, 1911; 

11, 1911; 15, 1911; 24, 1911; 32, 1911; 7, 1913; 9, 1913; 18,1913; 33,1913; 39, 1913; 3, 1914; 
13, 1914; 19, 1914; 28, 1914; 35, 1915; 45, 1914; 46, 1914; 7, 1915; 19, 1915; 32, 1915; 41, 1915; 
45, 1915; 25, 1916. 

3. Same— Charged with "Culpable negligence and inefficiency in the performance of 

duty" and found guilty in a less degree than charged, of " Neglect of duty." C. M. O. 
8 1915 2. 

4. Paymaster's clerk— Charged with. C. M. O. 26, 1912, 3. 

5. Warrant officers— Charged with. C. M. O. 32, 1910; 12, 1912; 15, 1912; 18, 1917. 

6. Warrant officers (commissioned)— Charged with. C. M. O. 27, 1908; 12, 1914. 

NEGLIGENCE. 

1. Counsel— Effect of negligence of counsel for accused. See Counsel, 40. 

2. Disbursing officers — Negligence with reference to embezzlement. See Embezzle- 

ment, 18. 

NEGLIGENCE IN OBEYING ORDERS. 

1. Officers— Charged with. C M. O. 203, 1902; 15, 1914. See also C. M. O. 55, 1894; 117, 
1907. 

NEGLIGENCE IN THE PERFORMANCE OF DUTY. 

1. "Culpable inefficiency in the performance of duty" — "Negligence in the per- 
formance of duty" is a lesser degree than. See Charges and Specifications, 71; 
Guilty in a Less Degree than Charged, 12, 38. 

NEGLIGENCE OR CARELESSNESS IN OBEYING ORDERS, ETC. 

1. Specific intent — Not required. See Intent, 2. 

"NERVE" ON PART OF TORPEDO BOAT COMMANDERS. See Collision, 6, 



NOLLE PROSEQUI. 419 

NEURASTHENIA.^ 

1. Nervous disorder— Not a mental disease. C. M. 0. 24, 1914, 6. 

NEUTRAL. See also Publication. 

1. Engaged in business— In an enemy's country during war is regarded as a citizen or 

subject of that country. C. M. O. 29, 1915, 11. See also Citizenship, 18; Expatria- 
tion, 2; Retired Officers, 31, 32. 

2. Internment— Of vessels in neutral ports. See Internment. 

3. Violation of— Newspaper clippings. See File 28573-46:1, June 6, 1916. 

4. War in Europe — Officers commenting publicly on military or political situation in 

Europe — Could be tried by general court-martial under "Conduct to the prejudice 
of good order and discipline." File 28517-24, J. A. G., Mar. 5, 1915. 

NEW TRIAL. See File 6674-38, April 26, 1907; 1 Op. Atty. Gen., 233. 

NEW YORK STATE CAMPAIGN BADGE. See Campaign Badges, 2. 

NEWFOUNDLAND. 

1. Letters— Newfoundland is not a part of Canada, but a separate Province of the British 
Empire; and official letters to Newfoundland are required to be prepaid. File 
7538-176, Aug. 2, 1915. 

NEWSPAPERS. See also Publication. 

1. *' Conduct unbecoming an officer and a gentleman "—Officer tried by general 

court-martial for writing an abusive letter to. See Conduct Unbecoming an Officer 
and a Gentleman, 4. 

2. Correspondents— Officers as. See Newspapers, 5. 

3. Evidence— An accused officer was charged with "Scandalous conduct tending to the 

destruction of good morals." The judge advocate offered in evidence a copy of a 
newspaper which contained accounts of the scandalous conduct of the accused. 
Counsel objected on the ground of hearsay. Judge advocate replied that the news- 
paper would "show how the alleged scandal was desseminated over the country," 
etc. The objection was sustained by the court. The department held: That "the 
court clearly erred in this ruling. The best evidence that the conduct of the accused 
did bring scandal and disgrace upon the naval service was the copy of a newspaper 
showing, as contended by the judge advocate, 'how the alleged scandal was dissemi- 
nated over the country.' A newspaper, in such a case, is offered to the court not as 
evidence of the facts stated therein which must be otherwise established, but as 
evidence of the publicity which was given the scandal." C. M. O. 4, 1913, 55. 

4. Information— Furnishing of information pertaining to the Navy or naval service, 

to newspapers, for publication, by persons belonging to the Navy or under the Navy 
Department. File 4496-57, June 4, 1907. 

5. Officers— Acting as correspondent for— An officer of the Marine Corps was authorized to 

act as correspondent for certain papers during the trip of the battleship fleet from the 
Atlantic to the Pacific coast. File 2310-144, Oct. 30, 1907. 

6. Purchase of— Only after advertisement. See Naval Attaches, 4. 

NEXT OF KIN. 

1. Medical records — Deceased enlisted men — Delivered to. See Medical Records. 

NOLLE PROSEQUI. 

1. Court— Can not enter. See Nolle Prosequi, 9. " 

2. Defense may not enter— It is not competent for the defense to enter nolle j^roscqui 

to any charge or specification. C. M. O. 42, 1914, 6. 

3. Definition— A nolle prosequi (or nol. pros., or withdraival, or discontinuance) is "an entry 

made on the record by which the prosecutor or plaintiff declares that ho will proceed 
no further." (2 Bouv. 503. See also, C. M. O. 14, 1910, p. 10. File 26251-S03S and 
26251-9538.) C. M. O. 42, 1914, 6. 

4. " Desertion "—Charge and specification of "Desertion" withdrawn and "Absence 

from station and duty without leave" substituted. G. C. M. Rec. 30832. <S (t also 
File 26251-12396:1. 

5. Desertion of accused— In view of the desertion of the accused the case was withdrawn. 
File 26251-11493. 

6. Erroneously used— The expression "nolle proscquV was evidently used erroneously 
in a case from misapprehension as to the meaning of the term. The' fact was . however, 
that the defense entered an objection to the third and fourth charges on the ground 
that the specifications thereunder were identical, citing specifically the court-martial 



420 NOLLE PROSEQUI. 

order in which the department's policy was announced as being opposed to duplicat- 
ing charges based on the identical facts, where there are no aggravating circumstances 
set forth under the one charge which distinguishes it from the other. C. M. O. 42, 
1914, 6-7. 

7. Escape — In view of the escape of a naval prisoner while awaiting trial by general court- 

martial the charge and specification thereunder were withdrawn. File 26251-12240, 
Sec. Navy, Aug. 24, 1916. 

8. Government may withdraw— "In the absence of express limitation the Government 

may always withdraw charges which it has made." (Street v. U. S., 133 U. S. 305). 
See File 26251-11493. 

After the accused was brought to trial it was held his fraudulent enlistment had 
been constructively ratified by restoring him to duty. While it was held that the 
fact of restoration to duty could not bar disciplinary proceedings for the offense of 
fraudulent enlistment if the department desired to bring him to trial therefor as a 
matter of policy the charge and specification were withdrawn. File 26251-8539:1, 
Sec. Navy, Jan. 24, 1914. 

In one case a charge and specification alleging desertion were withdrawn by tele- 
graph and accused restored to duty. File 26251-12396:1, Sec. Navy, Sept. 27, 1916. 

Where charges and specifications are withdrawn the accused should not be furnished 
with a copy of the record of proceedings. See Record of Proceedings, 36. 

9. Judge advocate — In a prosecution before a naval court-martial even the judge advocate 

or the court can not withdraw a charge or specification without authority from the 
Secretary of the Navy or other convening authority. (C. M. O. 16, 1911, pp. 3-4) 
C. M. O. 42, 1914, 6. 

10. Jurisdiction of civil authorities — Charge of "Desertion" preferred September 7, 

1911, was temporarily withdrawn while accused was under jurisdiction of civil au- 
thorities (indicted for murder). Accused was tried on original charges and specifica- 
tions on February 24, 1916, at Norfolk, Va. Pleaded "Guilty" and sentenced. 
G. C. M. Rec. 31774. 

11. Physical condition of the accused — Charges and specifications were withdrawn in 

view of the physical condition of the accused. 

12. Quorum — In view of the fact that the department's order to enter a nolle prosequi in 

the case of the above-named man amounts in effect to a withdrawal of the charges 
from prosecution; is an order which binds the judge advocate, the accused, and the 
. court alike; does not prejudice the rights of the accused; and requires no action by 
the court, the department does not consider that the absence of a legal quorum in the 
court will prevent the entering of a nolle prosequi in such case. File 26251-8038:7, 
Sec. of Navy, Feb. 14, 1914. 

13. Reused charges and specifications— Charges and specifications of "Fraudulent 

enlistment" were withdrawn and new ones substituted. G. C. M. Rec. 31500. 

14. Substitution. See Nolle Prosequi, 4, 13. 

15. Summary court-martial — The general court-martial charge and specification were 

withdrawn by order of the Secretarv of the Navy and the accused was tried by sum- 
mary court-martial. File 26251-11538. 

16. Temporarily withdrawn. See Nolle Prosequi, 10. 

NOLO CONTENDERE. 

1. Definition— The plea of nolo contendere is not a plea of "guilty, but without crimi- 
nality." It is a confession of guilt of the offense alleged, but forbids the Government 
from using the plea of "guilty" as evidence of guilt should a civil suit be entered 
subsequently against the accused to recover pay and allowances given accused (in 
his fraudulent enlistment). The court erred in not accepting the plea and in direct- 
ing the judge advocate to enter a plea of "not guilty " in lieu thereof, and proceeding 
with the trial. 

There is no difference in legal effect between this plea and that of guilty, at least 
with regard to all the proceedings in an indictment. (United States v. Hartwell 
(U. S.) 26 Fed. Cas., 196, 199.) 

Under the heading of Nolo contendere, on page 4815, vol. 5, of Words and Phrases 
JudiciaUy Defined, the following appears: 

"A plea of nolo contendere is an implied confession of guilt , and has the same effect 
as a plea of guilty, so far as the proceedings on an indictment are concerned, and hence, 
a defendant who has been sentenced on such a plea is to be deemed convicted of the 
offense for which he was indicted. (Commonwealth v. Horton, 9 Pick. , 206; Common- 
wealth v. Ingersoll, 145 Mass., 381, 14 N. E., 449.) In the latter case it is said: 'A plea 



NOLO CONTENDERE. 421 

of nolo contendere, when accepted by the court, is, in effect upon the case, equivalent 
to a plea of guilty. It is an implied confession of guilt, only, and can not be used 
against the defendant as an admission in any civil suit for the same act. The judg- 
ment of conviction follows upon such a plea as well as upon a plea of guilty, and such 
a plea, if accepted, can not be withdrawn and a plea of not guilty entered, except by 
leave of the court. If such plea is tendered, the court may accept or decline it, in its 
discretion. If the plea is accepted, it is not necessary or proper that the court should 
adjudge the party guilty, for that follows as a legal inference from the implied con- 
fession, but the court proceeds thereon to pass the sentence of the law.' (Barker v. 
Almy, 39 Atl., 185, 186, 20 R. I., 367, citing State v. Conway, 38 Atl., 656, 20 R. I., 
270.)" CM. 0.26,1910,5-6. 

NOMINAL PUNISHMENT. 

Public reprimand is. C. M. O. 8, 1915, 3. See also Public Reprimand, 11. 

NONPAYMENT OF DEBTS. See Debts. 

NOSTALGIA. 

1. Midshipman— Committed suicide while suffering from acute nostalgia. Held: Not 
line of duty and misconduct. File 26250-812. 

NOTARY PUBLIC. 

1. Recruiting— Irregularities of a notary public in connection with enlistment of an appli- 
cant. File 7657-299, J. A. G., Aug. 11, 1915. 

NULL AND VOID. 

1. Commissions. See Commissions, 20. 

2. General court-martial proceeding— Held null and void. C. M. O. 4, 191, 11. See 

also C. M. O. 33, 1914, 5. 

NUMBERS IN SENTENCES. 
1. Words and figures— The sentence must be recorded by the judge-advocate's own 
hand and must be free from erasures and interlineations. Numbers in the sentence 
should be expressed both by words and figures. C. M. O. 1, 1911, 5; 19, 1911, 5; 1, 
1913, 5. 

NUMBERS, ADDITIONAL. See Additional Numbers. 

NUMBERS, LOSS OF. See also Convening Authority, 50. 

1. Foot of list — Sentences which reduced an officer to the foot of the list. C. M. O. 47, 

1900, 2; 43, 1904, 2; 38, 1908; 2, 1907, 1; 3, 1911; 48, 1910; 20, 1910; 25, 1910; 3, 1911; 4, 1911; 
27, 1911; 6, 1912; 40, 1913. 

2. Foot of list and there remain until a certain loss of numbers sustained. C. 

M. O. 17, 1904, 2; 2, 1907; 20, 1910; 4, 1911; 17, 1915, 1; 14, 1915. 

3. Same — Where an officer's position as the Navy Register will not permit of his being 

reduced the numbers determined upon, the court should place him at the foot of 
the list with the proviso that he is to remain in that position until he has lost the 
required numbers. C. M. O. 14, 1910, 16; 23, 1910, 7; 1914, 2. 

4. Same — Reviewing and convening authority's action, where a sentence of dismissal 

is mitigated. See Numbers, Loss of, 10. 

5. Form of sentence— A sentence involving loss of numbers as "to lose ten (10) numbers 

in his grade, to take rank next after," etc., is objectionable, in view of the fact that 
it is practically impossible, because of changes being often made in the roster of officers, 
during the interim between the publication of the registers, for a court to be cogni- 
zant of the exact status of an officer and other officers junior to him when sentence 
is adjudged. Consequently, it sometimes happens that the terms of such a sen- 
tence, which are made to include both a loss of numbers and also that the officer 
sentenced will be placed in a certain position with reference to a specially named 
officer, are conflicting, in that loss of the specified numbers may not accord with 
reduction to the position next after the designated officer. An unqualified phrase- 
ology, such as, "The court, therefore, sentences him, , , to lose 

( — ) numbers in his grade," is preferable in such sentences. C. M. 0. 14, 1910, 

16; 23, 1910, 7; 19, 1914, 2. See also C. M. O. 18, 1917. 

6. Same — While the Secretary of the Navy, in mitigating certain sentences Involving 

loss of numbers, has designated the position that an officer will take in the roster, 
it is manifestly improper for courts to do so, as it is impossible for a court to know 



422 

the date that the sentence will be approved or the changes that may be made in the 
roster by the time of such approval. C. M. O. 17, 1913; 18, 1913; 19, "1914, 2. 

7. Same — The following court-martial orders contain incorrect phraseology for a sentence 

involving loss of numbers. C. M. O. 67, 1902; 43, 1904, 2; 22, 1909; 43, 1909; 45, 1909; 
56, 1910; IS, 1910; 15, 1913; 17, 1913; 18, 1913; 2, 1914; 3, 1914; 8, 1914; 19, 1914. 

8. Mitigation of dismissal to loss of numbers. The reviewing authority may 

mitigate a sentence of dismissal to loss of numbers. See Dismissal, 19." 

9. Promotion— Loss of numbers caused by suspension from promotion. See Promotion, 

10. Reviewing and convening authority's action — Proper form where it is desired to 

place officer at foot of list and wait there until he suffers the required loss — "The 
proceedings, fi nd in gs, and sentence of the general court-martial in the foregoing case 
were on approved by the Secretary of the Navy, but the sentence was miti- 
gated so that will be placed at the foot of the list of of the 

with the rank of , there to remain until he shall have lost a total of 

numbers in said grade." C. M. O. 31, 1914; G. C. M. Rec. 21628; 22910; 24405. 

11. Sentence executed can not be revoked— Where an officer while in the grade of second 

lieutenant was sentenced to loss of numbers, was not pardoned, but subsequently 
promoted to the grade of first lieutenant, the department held that the sentence was 
completely executed, and that there was no way, under existing law, in which he 
could be restored to the rank he held before he was sentenced. File 26261-246, Sec. 
Navy, March IS, 1914. See also File 26262-1794, Jan. , 1917. 

12. Same— An officer of the Navy requested the reconsideration of the department's action 

in approving the sentence of general court -martial in his case and mitigating the 
sentence to loss of five numbers. In reply the department stated that "the record 
was very carefully reviewed before final action was taken, and in view of the fact 
that there is no new evidence submitted in your letter, the department denies your 
request for a reconsideration of its former action." File 26251-8101: 2, Sec. Navy, 
April 30, 1915. 

13. Sentence of an officer — Loss of numbers is more appropriate than loss of pay for 

a commissioned officer. See Pay, 100. 

14. Suspension from promotion. See Promotion, 194-207. 

15. Warrant officer (commissioned)— The law governing the promotion of a commis- 

sioned warrant officer does not give him the right of promotion by reason of seniority 
(C. M. O. 21, 1910, p. 17: 1, 1911, p. 3; 37, 1914, p. 1), and the department has on numer- 
ous occasions expressed its disapproval of this form of panishment in the case of a 
commissioned warrant officer, as practically it is without any effect. (C. M. O. 37, 
1914, p. 1.) 

In order that there may be uniformity in the sentences adjudged, it is desirable 
that courts-martial use the following form and make it a basis for adjudging sentences 
in the cases of commissioned warrant officers: 

"The court, therefore, sentences him , , to be restricted to his ship or 

station for a period of ( ) months, and to lose dollars (S ) 

per month of his pay for a period of ( ) months." (C. M. O. 37, 1914, 1.) 

C. M. O. 52, 1914. See also C. M. O. 48, 1915, 5; 18, 1917. 

16. Same — Department favors loss of pay rather than loss of numbers for commissioned 

warrant officers. C. M. O. 48, 1915, 5. 

NURSE CORPS. See Bureau of Medicine and Surgery, 6. Medical Officers of 
the Navy, 11. 

OATHS. 

1. Additional charges and specifications— Where additional charges aad specifica- 

tions are preferred after arraignment no legal objection could exist to swearing mem- 
bers again as to the additional charges and specifications. See Additional Charges 
and Specifications, 2. 

2. Adjutant and Inspector, TJ. S. M. C. See Oaths, 48. 

3. Affidavits— Oaths by recruiting officers to persons who desire to make affidavits as to 

dates and places of birth of applicants for enlistment. See Oaths, 30, 39. 

4. Administration of. See Oaths, 48. 

5. Army — Difference between oath administered to members of an Army and a Navy 

general court-martial. See Additional Charges and Specifications, 1. 

6. Boards of inquest— Oaths not authorized. See Boards of Inquest, 4. 



OATHS. 423 

7. Boards of Investigation— It has never been decided that boards of investigation in 

the Navy have general authority to swear witnesses in every case. Precedent sup- 
ports the conclusion that such boards are authorized to administer oaths to witnesses 
only when the subject matter of the investigation relates to frauds on, or attempts 
to defraud, the Government or any irregularity or misconduct of any officer or agent 
of the United States." (See R. S. 183; Act, Mar. 2, 1909, 31 Stat., 951; Feb. 13, 1911, 
36 Stat., 898.) File 3980-842, Sept. 29, 1913. 

Navy regulations, 1913, R-316 (3-4) provides that boards of investigation will not 
take testimony under oath except in important cases in which the precept expressly 
states that such board is authorized to administer oaths to witnesses in accordance 
with the above law. See Oaths, 25, 26. 

On May 27, 1915, the Superintendent of the Naval Academy convened a naval 
board of investigation authorized to take testimony under oath in accordance with 
R. S. 183, as amended by Act, Feb. 13, 1911. File 5252-73, Oct. 2, 1915. 

8. Clerks or reporters of general courts-martial— Should be sworn by the judge ad- 

vocate, not by the president of the court. See Clerks or Reporters of General 
Courts-Martial, 2. 

9. Commanding officer— Authority to administer. See Oaths, 48, 49. 

10. Counsel, special. See Counsel, 50. 

11. Courts of inquiry. See Courts of Inquiry, 35, 36. 

12. Courts-martial— Until a court is duly sworn according to law it is incompetent to 

perform any judicial act, except to hear and determine challenges against its members. 
CM. 0.29, 1914,3. 

13. Deck courts. See Deck Courts, 32, 58; Oaths, 54. 

14. Deck court recorder. See Deck Courts, 32. 

15. Enlistment — The applicant for enlistment is bound by the terms of his oath of en- 

listment which he executes before the recruiting officer. Statements not in harmony 
therewith made by the applicant to members of the recruiting party before executing 
the oath, but not made to the recruiting officer, do not relieve the applicant from his 
statements sworn to under oath. C. M. O. 12, 1911, 3-5. 

16. Executive officers — Authority to administer oaths— Under act, March 3, 1901 (31 Stat., 

1086); Navy Regulations, 1913, R-1536 (1); the executive officer of a naval vessel is 
authorized, in the absence of his commanding officer, to administer oaths for all 
purposes of naval administration. G. C. M. Rec. 26651; File 19037-38, J. A. G., Sept. 
25, 1913. See also Oaths, 49. 

17. Same — When the commanding officer is on board his vessel, the executive officer is 

not authorized to administer oaths. The law specifically enumerates the different 
classes of officers who have such authority, but does not mention therein executive 
officers. Expressio unius est exclusio alter ius. (See Words and Phrases.) File 
19037-38, J. A. G. Sept. 25, 1913. 

18. Same — Executive officers not in command can not exercise authority "to administer 

oaths on papers relating to naval administration" merely because they may inci- 
dentally and occasionally ' ' act as recruiting officer of the ship. ' ' (Naval Instructions, 
1913, 1-2514 (3)). As shown by the department's letters of December 1, 1900, to 
the Naval Committee of Congress recommending that the power to administer oaths 
be extended to recruiting officers "throughout the country, where there is no com- 
manding officer of a vessel available to administer the required oath." (File 7286-00, 
J. A. G., Dec. 1, 1900.) File 19037-38, J. A. G., Sept. 25, 1913. 

19. Foreign country. See Counsel, 50. 

20. General courts-martial— Members of a general court-martial take the following 

oath, administered by the judge advocate, which is required by section 1624, Revised 
Statutes, before proceeding with a trial: 

"I, A B, do swear (or affirm) that I will truly try, without prejudice or partiality, 
thecasenowdepending, according to the evidence which shall come before the court, 
the rules for the government of the Navy, and my own conscience; that I will not by 
any means divulge or disclose the sentence of the court until it shall have been approved 
by the proper authority- and that I will not at any time divulge or disclose the vote 
or opinion of any particular member of the court, unless required so to do before a court 
of justice in due course of law." (A. G. N. 40.) 
The president administers the following oath or affirmation to the judge advocate: 
"I, A B, do swear (or affirm) that I will keep a true record of the evidence given to 
and the proceedings of this court; that I will not divulge or by any means disclose 
the sentence of the court until it shall have been approved by the proper authority; 



424 OATHS. 

and that I will not at any time divulge or disclose the vote or opinion of any particular 
member of the court, unless required so to do before a court of justice in due course of 
law." (A. G. N. 40.) See C. M. O. 4, 1914, 11; File 26251-12159, Sec. Navy, Dec. 9, 
1916, p. 2. 

21. Same— Order of administering. See Oaths, 27. 

22. Same— Divulging vote or opinion, or sentence. See Criticism of Courts-Martial, 22, 

36; Oaths, 47. 

23. Hospitals — Where a passed assistant surgeon on duty at a hospital where an officer 

was a patient administered an oath to such officer on an affidavit by him, the depart- 
ment stated: " It is proper to remark that there is no authority of law for the adminis- 
tration of oaths by naval officers, except in certain specific cases, of which the one in 
point is not an instance." C. M. O. 99, 1893, 2. 

24. Income tax returns — Officers empowered to administer oaths are authorized to 

administer the necessarv oaths for the execution of income tax returns. File 28472-9; 
19037-45. See also U. S.v. Bailey, 9 Pet. 238; Act, Oct. 3, 1913 (38 Stat. 166-181), with ref- 
erence to income taxes. 

25. Investigating officer— Authorized to administer. See File 5421-11, Sec. Navy, May 2, 

1907, to Solicitor. See also R. S. 183, as amended by act March 2,1909 (31 Stat. 951), 
and act Feb. 13, 1911 (36 Stat. 898); file 26251-8827:5; 16711, July 12, 1911; Oaths, 7. 

26. Same — Any officer or clerk of any of the departments lawfully detailed to investigate 

frauds on, or attempts to defraud, the Government, or any irregularity or misconduct 
of any officer or agent of the United States, and any officer of the Army, Navy, 
Marine Corps, or Revenue Cutter Service, detailed to conduct an investigation, and 
the recorder, and if there be none, the presiding officer of any military, naval, or 
Revenue Cutter Service board appointed for such purpose, shall have authority to 
administer an oath to any witness attending to testifv or depose in the course of such 
investigation. (Act of Feb. 13, 1911, 36 Stat. 898.) See also Oaths, 7, 25. 

27. Irregularly administered — From an examination of a record of proceedings of a general 

court-martial the department noted that the oath was first admini s tered by the 
judge advocate to the members, and then to the judge advocate by the president, 
whereas A. G. N. 40 provides that the president shall administer the oath to the judge 
advocate, and, this oath being duly administered, each member of the court shall be 
sworn by the judge advocate. This mode of procedure, although irregular, does not 
invalidate the proceedings of the court. (See 13 Op. Atty. Gen. 374.) C. M. O. 10, 
1893, 1. 

28. Judge advocates — Oath administered to judge advocate by president of general court- 

martial. See Oaths, 20. 

29. Same — Where a judge advocate is relieved, the record must show that new judge 

advocate took oath. See Judge Advocate, 92. 

30. Same — The judge advocate of a general court-martial is authorized to administer an 

oath to an enlisted man when the affidavit made by such man relates to the loss of 
certain militarv stores, even though the affidavit has no relation to any court-martial 
matter. See File 26806-94; 19037-27. 

31. Marine Corps— Authority of officers of the Marine Corps to administer oaths. See 

Oaths, 48. 

32. Midshipmen — Agreement and oath signed by midshipmen appointed to the Naval 

Academv. See Midshipmen, 7, 57. 

33. Naval administration. See Oaths, 48. 

34. Naval force of Pennsylvania— The commanding officer of the naval force of Penn- 

svlvania is not empowered by Navy Regulations, 1913, R-1536 (1), or by the act of 
March 3, 1901 (31 Stat. 1086), upon "which said regulation was based, to administer 
oaths to witnesses in the investigation conducted by him concerning a collision. 
File 26835-360, J. A. G., August 21, 1913. 

35. Naval Militia— Oath prescribed in G. O. 150, June 14, 1915. See Naval Militia, 21. 

36. Naval Observatory— Authority of commandant to administer oaths. See Naval 

Observatory, 1. 

37. Private business— Act of March 3, 1901 (31 Stat. 1086), amending act, Jan. 25, 1895 

(28 Stat. 639) [see also act, Feb. 13, 1911, 36 Stat. 898], does not authorize the officers 
mentioned therein to administer an oath for other purposes, such as in matters relat- 
ing to the private business of either officers or enlisted men. File 19037-27, Sec. Naw, 
Mar. 30, 1912. 

38. Same — A commanding officer has no authority to administer an oath in the case of 

an enlisted man desiring to prove up a homestead or making application for an 
annuity or any other sum due an Indian. Such does not come within the expression 



OATHS. > 425 

(act, Mar. 3, 1901, 31 Stat. 1086) "other purposes of naval administration" referring 
to the authority to administer oaths, as the power to administer oaths by officers in 
the service was granted for the purpose of facilitating the business of the naval service 
and to promote economy. File 19037-27, Sec. Navy, Mar. 30, 1912. 

39. Recruiting officers— In view of the provisions of Navy Regulations, 1913, R-1536, 

and the Act of March 3, 1901 (31 Stat. 1086), it is held that the administering of an oath 
by a recruiting officer of the Navy "to a person not in the naval service who desires 
to make an affidavit as to the date and place of birth of an applicant for enlistment 
in the United States Navy," is authorized under the clause "and for other purposes 
of naval administration." (See File 7751-03, J. A. G., Sept. 9, 1903; 19037-38, J. A. 
G., Sept. 25, 1913; 19037-45, J. A. G., May 26, 1914.) File 26806-138, J. A. G., Feb. 
1, 1916; C. M. O. 5, 1916, 7. 

40. Same— Authority to administer oaths. See Oaths, 48. 

41. Solicitor— The Solicitor in the Office of the Judge Advocate General was detailed by 

the Secretary of the Navy, May 2, 1907, to investigate reported discrimination against 
Marines in "uniform visitmg the Library of Congress, and was authorized to administer 
oaths to witnesses under R. S. 183. File 5421-11, Sec. Navy, May 2, 1907. See also 
File 26263. 

42. Special counsel. See Counsel, 50. 

43. Statute — Authority to administer an oath can be given only by statute — The person 

who can administer the oath being named in the statute, other persons are excluded 
by its terms from exercising that authority. C. M. O. 14, 1911, 5, 5, 6. 

44. Summary courts-martial. See Oaths, 47, 54; Summary Courts-Martial. 

45. Surgeons. See Oaths, 23. 

46. Taking of oath— It does not follow that every one who takes the oath of office is an 

officer. File 9736-18, J. A. G., June 25, 1910, p. 13. 

47. Vote or sentence of summary courts-martial — The oath administered to members 

of summary courts-martial contains no prohibition against divulging the vote of a 
particular mgmber, and his vote may be officially ascertained without judicial pro- 
ceedings. 

Nevertheless the department desires it to be understood that notwithstanding 
the absence of any law or regulation on the subject, in the matter of secrecy, it regards 
members of summary courts-martial as governed by the same principle which applies 
to members of general courts-martial. Considered solely as a matter of propriety 
and official decorum, it is as pernicious for members of summary courts-martial, as 
it is for members of general courts-martial, to disclose the sentence of the court prior 
to its approval, or at any time to divulge or disclose the vote or opinion of any particu- 
lar member of the court, unless officially required to do so by proper authority. 

Briefly stated, the department considers the confidential nature of the vote or 
opinion of each member of a summary court-martial to be sacred in all cases except 
where official inquiry is made by the convening or higner authority. In the case of 
general courts-martial the statute protects this secrecy against any other than a 
judicial investigation; in the case of a summary court-martial the department, in 
the absence of any statute or regulation on the subject, will sanction a modification 
of this rule only to the extent of allowing the vote or opinion of members to be disclosed , 
as above stated, upon official inquiry by the convening or higher authority. File 
25675-9-10-11, Sec. Navy, Oct. 28, 1915; C. M. O. 42, 1915, 8-9. See also Criticism 
of Courts-Martial, 36; Reports on Fitness, 3. 

48. Who may administer oaths— The act of March 3, 1901 (31 Stat. 1086), Navy Regu- 

lations, 1913, R-1536(l), provides: "That judge advocates of naval general courts- 
martial and courts of inquiry, and all commanders in chief of naval squadrons, com- 
mandants of navy yards and stations, officers commanding vessels of the Navy, and 
recruiting officers of the Navy and the adjutant and inspector, assistant adjutant 
and inspectors, commanding officers, and recruiting officers of the Marine Corps, be. 
and the same are hereby, authorized to administer oaths for the purposes of the 
administration of naval"justice and for other purposes of naval administration." 
File 26806-138, J. A. G., Feb. 1, 1910; C. M. O. 5, 1916, 7. See also File 19037-45, J. A. 
G., May 26, 1914; File 26509-.}:16, J. A. G., Oct. 1, 1909, p. 13, with reference to 
adjutants and inspectors of the Marine Corps. 

49. Same — There is no authority of law for the administration of an oath bv any officer 

on board ship except the commanding officer [and executive officer], and i he depart- 
ment held that any other officer could not administer the oath in enlisting a man on 
board ship. C. M. O. 135, 1897. 2. See also Oaths, 16-18. 



426 OATHS. 

50. Witnesses— Naval courts-martial— When a witness takes the stand after a recess, or 

resumes the stand for any reason, the record of proceedings should show that he was 
cautioned that the oath* previously taken is binding. C. M. 0. 47, 1910, 5. But 
where such witnesses were resworn instead of merelv being warned, such error does 
not in anywise affect the validity of the proceedings*. C. M. O. 54, 1898. 

51. S am e — Where a witness for the prosecution was not duly sworn, but permitted to 

testify and then sworn that the testimony as given was the truth, the proceedings of 
the summary court-martial were disapproved. Case of Wm. P. McCabe, Nov. 27, 
1909. 

52. Same — The proceedings of a deck court were set aside in a case where the deck court 

officer allowed himself to be sworn as a witness for the prosecution by the recorder, 
etc. See Deck Courts, 58. 

53. Sa m e — Witness sworn by judge advocate instead of by president of the general court- 

martial. See Deck Courts, 5S: Estoppel, 9. 
54.- Same — An oath or affirmation in the following form shall be administered to all wit- 
nesses, before any court-martial, by the president thereof: "You do solemnly swear 
(or affirm) that the evidence you snail give in the case now before this court shall be 
the truth, the whole truth, and nothing but the truth, and that you will state everv- 
thing within your knowledge in relation to the charges. So help* you God; (or, 'this 
vou do under the pains and penalties of perjury')." (A. G. N.* 41.) C. M. O. 48, 
1915, 2. 

OBEDIENCE. See also Disobedience of Oedees; Oedees. 

1. Importance of — "The department desires to impress upon the service the importance 

of obedience to the orders of superior authority, as the first and plainest duty of all, 
and one from which no person in the Navy is or can be exempted." C. M". O. 67. 
1892, 2: 101, 1903, 9. See also Oeders. 47. 

2. Same — The offense of refusing to obey the lawful order of a superior officer is one of the 

most serious known to naval laws. C. M. O. 57, 1895, 3. 

3. Military man— The first duty of a military man is obedience. C. M. O. 37, 1915, 7. 

OBESITY. See Acting Assistant Dental Surgeons, 1. 

OBJECTIONS. 

1. Charges and specifications — Procedure when objection is made to. See Charges 

and Specifications, 33, 34. 

2. Errors in procedure— Where counsel claimed that the defense could not hear the 

statements going on in the court, and therefore the sentence was illegal, the depart- 
ment stated in part that "were such a claim admitted no court proceedings would 
ever hold, as all that would be necessary for the defense to invalidate the proceedings 
would be to state that certain parts of the proceedings were not heard by the defense." 
The defense "had the opportunity'" to object to the proceedings and to disprove the 
facts presented, "but preferred to let it pass in the hope by so doing he could establish 
an error in procedure after the trial andso cause the proceedings of the court to be set 
aside and therebv free his client from punishment for his offense by a technicality." 
C. M. O. 9, 190S. 3. -See also Judge Advocate, 105. 

3. Evidence— Objection to. See Evidence, 79-54. 

OBSCENE AND THREATENING LANGUAGE. 

1. Massachusetts law. File 26251-2993:12. 

OBSCENE BOOKS AND POSTAL CARDS. 

1. Mails— Sending through. See File 26251-6162. 

2. Same— Postal card. -See File 753S-197 

OBSTINATE COURT. See Celticism of Couets-Martial, 43. 
OBTUNDITY OF COURT. See Celticism of Couets-Martial, 44. 

OFFENSES. 

1. Accumulation of. See Accumulation of Offenses. 

2. Aggravating circumstances. See Absence from Station and Duty Without 

Leave, 12: Accused, 51, 52; Aggravating Circumstances: Naval Academy, 16. 

3. CornniahcLing officer — Sad the commanding officer made the thorough investiga- 

tion of the circumstances attending the offenses with which the accused was charged 
required by Navy Regulations, recourse to a general court-martial would hardly 
have been found necessary, and punishment, such as the commanding officer would 



OFFENSES. 427 

have been authorized to award, or such as could have been awarded by sentence of 
a summary court-martial, would seem to have been amply sufficient in this case. 
C. M. O. 135, 1900, 1. 

4. Common law offenses. See Common Law, 6. 

5. Enlisted man— More serious when committed by an accused of long service. See 

Accused, 52. 

6. Officers— Aggravated circumstances. See Accused, 51; Naval Academy, 16. 

7. "Purely military offenses." C. M. O. 49, 1915, 21, 22. 

8. Specifications — Defective if it fails to allege an offense. See Charges and Specifi- 

cations, 39, 102, 103. 

9. Statement of an offense. See Charges and Specifications, 102, 103; Conclusions 

of Law, 5. 

10. Time— As essence of offense. See Absence from Station and Duty Without Leave, 

29; Charges and Specifications, 92. See also File 26287-1125, J. A. G., March 19, 
1912. 

11. War— Offenses in time of war. C. M. O. 67, 1898; 91, 1898; 95, 1898; 33, 1899. See also 

Desertion, 132-137; War, 6,22,23. 

OFFICE." See also Grade and Rank. 

1. Civil office or employment — Of retired naval officers. See Retired Officers, 18, 

26, 28, 31, 34-37, 42, 50, 72. 

2. Contract: — "Whatever the form of the statute, the officer under it does not hold by 

contract. He enjoys a privilege revocable by the sovereign at will; and one legisla- 
ture can not deprive its successor of the power of revocation." (Crenshaw v. U. S., 
134 U. S. 99.) File 26260-1392, J. A. G., June 29, 1911, p. 17. See also "Office," 4, 5; 
Pay, 76. 

3. Definition— An "office" is a public station, or employment, conferred by the appoint- 

ment of government. The term embraces the ideas of tenure, duration, emolument, 
• and duties. (U. S. v. Hartwell, 6 Wall. 385, 393.) 

An acting paymaster, appointed by the senior officer present is not an officer. 
A midshipman appointed acting master (1861) was held to be entitled to receive the 
pay of that grade. A deputy collector of internal revenue is not an officer; neither is 
a special deputy marshal. A circuit judge of the United States appointed a commis- 
sioner under a convention with Great Britain does not thereby hold an office. A 
general appraiser appointed as an expert to represent the United States in an inter- 
national tariff commission is not an officer. The appointment of a special assistant 
attorney to aid in a certain case or set of cases is not an appointment to an office. 
File 9736-18, J. A. G., June 25, 1910, pp. 7, 10. See also File 5460-70, Mar. 1, 1915. 

4. Same — An "office" is defined to be a "public charge or employment," and he who 

performs the duties of the "office" is an "officer." If employed on the part of the 
United States, he is an officer of the United States. Although an "office" is "an 
employment," it does not follow that every "employment" is an "office." A man 
may certainly be employed under a contract, express or implied, to do an act or per- 
form a service, without becoming an officer. But if a duty be a continuing one, it 
seems very difficult to distinguish such a "charge or employment" from an "office," 
or the person who performs the duties from an officer. (U. S. v. Maurice, 2 Brock., 
96; 24 Op. Atty. Gen. 12.) File 9736-18, J. A. G., June 25, 1910, p. 11. 

5. Same— A Government office is different from a Government contract. The latter 

from its nature is necessarily limited in its duration and specific in its objects. The 
terms agreed upon define the rights and obligations of both parties, and neither may 
depart from them without the assent of the other. (U. S. v. Hartwell, 6 Wall., 3S5, 
393; U. S. v. Germaine, 99 U. S. 508.)- File 9736-18, J. A. G., June 25, 1910, p. 8. 

6. Duration. See "Office," 3. 

7. Duties. See "Office," 3, 4, 18. 

8. Emolument. See "Office," 3. 

9. Employment or charge. See "Office," 4. 

10. Enlisted men— Does an enlisted man hold "office?" See File 9644-27, J. A. G., Jan. 

24, 1913. See also Decorations, 2; "Office" 11-13. 

11. Same — Held: That an enlisted man of the Army is an "officer" within the meaning 

of R. S. 850, allowing expenses incurred by witnesses for the Government. File 3707. 
June 15, 1904, citing 16 Op. Atty Gen. 113. 

12. Same— Held: That enlisted men of the Navy and Marine Corps are not officers of the 

United States within the constitutional prohibition and the act of June 31, 1881, sec. 
3 (21 Stat. 604), with regard to the acceptance of medals, etc., from foreign Govern- 
ments. See File 3707, June 15, 1904; 9644-27, Jan. 24, 1913; DECORATIONS, 2. 



428 

13. Same— The question whether Art. I. sec. 9, class 8, of the Constitution includes within 

its terms any person occupying a position of trust or profit under the United States, 
such as an enlisted man, is not free from doubt. There are decisions which have given 
the word "office" a very broad construction in other connections. File 9044-27, 
Jan. 24, 1913. 

14. Oath— Everv one who takes an oath is not an officer. See Oaths, 46. 

15. Pay. See Emolument; "Office," 3, 4, 17, 18. 

16. Property of incumbent— An office created by statute is not the property of the 

incumbent. Being given by statute, it can be taken away by statute, and, there- 
fore, the rules of law applicable to proceedings to deprive a person of property law- 
fully acquired are not, in general, applicable to proceedings of examining boards, in 
cases of promotion. The rules of procedure, even in civil cases, where rights of prop- 
erty are involved, are not applicable here, except in so far as they are made so by 
statute and regulations adopted by the Navy Department in accordance with statute 
laws. Neither can such examinations be assimilated in any manner to criminal 
proceedings, which they in no sense resemble. The offices held by naval officers, 
Congress creates, abolishes, and limits at will. Congress has complete power, if it 
wishes, not only to stop promotions, but to abolish these offices. It might declare 
that no one should hereafter be promoted who was not over 6 feet high; or it might 
direct that all officers noc of the required height should be discharged; and it can cer- 
tainly pass an act like that of August 5, 1882 (22 Stat. 286), directing the discharge of 
officers whose unfitness arises from their own misconduct. File 26260-1392, June 29, 
1911. See also Promotion, 142, 213. 

17. Salary— The incumbent of an office is entitled to the salary attached thereto by 

law, and if he receives a less sum from disbursing officers he can claim and receive th© 
balance. (Dyery. U. S., 20 Ct. Cls. 166, 171.) File 5362-35, J. A. G., June 29, 1911, p. 6. 

18. Same— The law creates the "office," prescribes its duties, and fixes the compensation. 

The appointing power has no control, beyond the limits of the statute, over the com- 
pensation, either to increase it or to diminish it. (Converse v. TJ. S., 21 How. 463! 
IT. S. v. Williamson, 23 Wall. 411; U. S. v. Lawson, 101 U. S. 164; U. S. v. EUsworth, 
101 U. S. 170; Hall v. Wisconsin, 103 TJ. S. 5; Allstaedt's Case, 3 Ct. Cls. 284; Patton's 
Case, 7 Ct. Cls. 362; Sleigh v. U. S., 9 Ct. Cls. 369.) File 5362-35, J. A. G., June 29, 
1911, p. 7. See also Emolument; Pay, 112, 115, 116; Retired Officers, 18. 

19. Taxation— Of an office of the United States. See Taxation, 1. 

20. Tenure. See "Office," 3. 

21. Vested right— An office is not a vested right. File 14818-4, J. A. G. 1909, p. 6. See 

also "Office," 16. 

OFFICE OF NAVAL INTELLIGENCE. 

1. Established— "An 'Office of Intelligence' is hereby established in the Bureau of Navi- 
gation for the purpose of collecting and recording such naval information as may be 
useful to the department in time of war, as well as in peace. 

"To facilitate this work, the Department Library will be combined with the 'Office 
of Intelligence,' and placed under the direction of the Chief of the Bureau of Navi- 
gation. 

"Commanding and all other officers are directed to avail themselves of all oppor- 
tunities, which may arise, to collect and forward to the 'Office of Intelligence' profes- 
sional matter likely to serve the object in view." G. O. 292, May 23, 1882. See also 
act of February 24, 1899 (30 Stat., 874). 

OFFICERS. 

1. Acting officers. See Acting Boatswains; Acting Gunner; Acting Machinists; 

Acting Pay Clerks; Acting Warrant Officers, etc. 

2. Additional numbers. See Additional Numbers. 

3. Agreement as to quarters. File 26254-2052. 

4. Appeals. See Appeals, 10-13. 

5. Apology. See Apology, 1; Officers, 101. 

6. Arrest of, for trial by general court-martial— Surrender of sword. See Arrest, 

26, 39. 

7. Arrested by civil authorities. See Arrest, 7, 28; Civil Authorities, 10, 33, 34. 

8. Assault— Officer assaulting a civilian. See Assault, 20. 

9. Same — Ruffianly assault by accused officer upon a brother officer. See Assault, 21 

10. Blackmail. See Officers, 3, 118. 

11. Breach of trust— A breach of financial trust or misuse of public funds is never trivial. 

C. M. O. 107, 1901, 2. 



OFFICERS. 429 

12. Brief service— Offense due to the "comparative brevity" of accused's period of service. 

C. M. O. 31, 1887, 2. See also Clemency,10. 

13. Cheating — An officer convicted of an offense such as cheating at examination is not 

desirable for the naval service. C. M. O. 20, 1916. See also Blotter, 1; Gouging; 
Midshipmen, 22. 

14. Citizen— An officer must be a citizen of the United States. See Citizenship, 28. 

15. Civil authorities— Officers arrested by. See Arrest, 7, 28; Civil Authorities, 33, 

34; Contempt of Court, 4. 

16. Civil obligations — "It has always been the policy of this department to require that 

members of the naval service fulfill their civil obligations, and disciplinary proceed- 
ings have been initiated where failure to do so has brought scandal and disgrace upon 
the naval service." File 7657-408, Sec. Navy, Oct. 28, 1916. See also Debts, 1-5, 
9-25. 

17. Civil office or employment. See Retired Officers. 

18. Club, Army and Navy Club, Manila, P. I.— Officer expelled from. C. M. O. 5, 

1909, 1. 

19. Commanding officers. See Commanding Officers. 

20. Commissions — In general. See Commissions. 

Duties, obligations, and responsibilities imposed upon an officer by the language 
of his commission. See Navigation, 31 (p. 413); Officers, 97. 

21. Complaints and explanations — Officers making either complaints or explanations 

are to confine themselves simply and exclusively to the facts of the case, and are 
neither to express an opinion nor to impugn the motives of the opposite party. 
C. M. O. 3, 1887, 2. See also C. M. 0. 28, 1894, 2; Correspondence; Officers, 63. 

22. Confined at hard labor. See Confinement, 18; Hard Labor, 5, 6. 

23. Constructive service. See Constructive Service. 

24. Consular officers — Have no power to issue orders to naval officers, etc. See Diplo- 

matic Officers, 2; Officers, 37. 

25. Contempt of civil court — Tried by general court-martial. See Contempt of Court, 4. 

26. Control of temper and speech. See Officers, 117. 

27. Counsel for accused— In court-martial cases. See Counsel. 

28. Countersign— Officers should observe. See Countersign; Orders,34; Sentinels, 18. 

29. Court-Martial Orders— Officers responsible for ignorance of. See Court-Martial . 

Orders, 22, 39-42. 

30. Criticizing commanding officer— Tried by general court-martial for publicly 

criticizing his commanding officer. C. M. O. 40, 1909. 

31. Debts. See Debts. 

32. Deck— Officers of the Deck. See Officer-of-the-Deck; Watch Officers. 

33. Definition— "Officer," as defined in R-64, provides that "within the meaning of 

the foregoing articles, unless there be something in the context or subject matter 
repugnant to or inconsistent with such construction, officers shall mean commissioned 
and warrant officers, and paymasters' clerks; superior officers shall be held to include 
mates and petty officers of the Navy and noncommissioned officers of the Marine 
Corps, in addition to the officers enumerated." C. M. O. 49, 1915, 19-20. 

34. Same — An officer is one who performs the duty of an office. See " Office," 4. 

35. Desertion of. See Desertion, 89-91. 

36. Dictatorial— In handling enlisted men. See Officers, 74. 

37. Diplomatic and consular officers — Have no power to issue orders to commanding 

officers of legation guards, troops, or naval vessels. See Diplomatic Officers, 2. 

38. " Discharged " officers— The term "discharged" as used in the act of Aug. 5, 1882 

(22 Stat. 286), providing for the discharge of officers who fail morally on examination 
for promotion, was intended to be synonymous with the words "wholly retired " 
File 26260-1392, 26260-697, Sec. Navy, June 29, 1911, p. 25. See also Discharge, 11. 

39. Dismissed officer— Restoration of dismissed officers. See Dismissal, 23; Legisla- 

tion, 5. 

40. Same — An officer dismissed by sentence of a naval court-martial shall never again 

become an officer of the Navy. File 5252-79, J. A. G., June 19, 1915; Dismissal, 22. 

41. Disrespectful to commanding officer— Tried by general court-martial. C. M. O. 

28, 1908. 

42. Elope, attempt to— "With young girl— Tried by general court-martial. C. M. O. 55, 

1894. See also Eloping, 2. 

43. Emergency— It is incumbent upon officers of the Navy to so conduct themselves that 

they will not only be able to assume ordinary routine duties, but to meet any emer- 
gency which might arise requiring the highest degree of energy and mental claritv. 
C. M. O. 5, 1915, 2. See also Emergency. 



430 OFFICERS. 

44. Enlisted men — Relations with — Giving intoxicating liquor to. C. M. O. 49, 1888; 

28, 1908; 16, 1917. 

45. Same — Treatment of— Officer was tried by general court-martial for striking an enlisted. 

man with his sword when the man was in double irons, kneeling on the deck with 
his hands in irons behind his back. C. M. O. 29, 1890. 

46. Same— Manner in handling. See Officebs, 74. 

47. Same— Officer tried by general court-martial for sleeping in an enlisted man's bunk 

after he had been assigned proper quarters in an officer's house. C. M. O. 16, 1910. 

48. Explanations and complaints. See Correspondence; Officers, 21. 

49. Evasion of duty — "All officers are reminded of the impropriety of seeking to evade 

their proper tours of professional duty, on personal considerations or through the 
intervention of influential friends, thus seeking to impose upon others service which 
it is their own duty to perform, and perhaps hardships and dangers which belong 
of right to themselves." G. O. 174, June 6, 1872. 

50. Example — To midshipmen when on duty at the Naval Academy. C. M. 0. 14, 1915, 2. 

51. Expatriation. See Citizenship, 17-18; Expatriation, 2; Retired Officers, 31. 

52. Expelled— Officer expelled from Army and Navy Club, Manila, P. I. C. M. O. 5, 1909. 

53. Expert witness — In a suit between private parties — Compensation for. See Merchant 

Vessels, 3, 4; Expert Witnesses, 8, 11. 

54. Fees— For service rendered in time of the United States. See Merchant Vessels, 4. 

55. Foreign country— The accused has been found guilty by a general court-martial of 

"Drunkenness," and "Conduct to the prejudice of good order and discipline." The 
gravity of these offenses— serious under any circumstances — is greatly augmented 
by the fact that they were committed by an officer of the United States Navy on duty 
in Mexican waters at a time when the international relations with Mexico were such 
as to require special care on the part of all citizens of the United States in their conduct 
and bearing while in that country, but even more especially was it incumbent upon 
commissioned officers of the United States to avoid all possibilities of friction or criti- 
cism. 

The accused was in Mexico because of the existing relations with that country 
and because of the commission he bore in the United States Navy. He was allowed 
ashore in civilian clothes on the night in question because of the presumption that a 
commissioned officer could be trusted to conduct himself in a gentlemanly manner 
and in a manner which would not reflect discredit upon the service or upon the uni- 
form which he, as a commissioned officer, was entitled to wear. His actions proved 
him unworthy of the trust and confidence which is reposed in commissioned officers, 
and the department considers that it is only through the extreme leniency of the court 
that he is permitted to retain a commission in the sen-ice and mingle on a footing 
of equality with officers who are capable of appreciating the responsibilities of their 
position and the high standards which are imposed upon them and which as a body 
they zealously cherish. The reputation of the commissioned personnel of the sen-ice 
has been lowered by the irresponsible, unofficerlike conduct of the accused. C. M. 
O. 7, 1914, 16. See also Commanding Officers, 20, 44. 

56. Foreign States — Accepting office from. See Officers of the United States. 

57. Furlough— Secretary of the Navy may place an officer on furlough. See Officers, 106. 

58. General court-martial— Is only naval court-martial which has jurisdiction to try 

commissioned officers of the Naw. C. M. O. 7, 1914, 9. 

59. Gouging. See Blotter, 1; Gouging; Midshipmen, 22; Officers, 13. 

60. "Habit"— An officer cannot be court-martialed for a "habit." File 26260-1392, J. A. 

G., June 29, 1911, p. 14. See also Accumulation of Offenses; Charges and Speci- 
fications, 61-68, 93 (F). 

61. Hard labor— Confinement at. See Confinement, 18; Hard Labor, 5, 6. 

62. Ideals — The department requires of and expects from officers occupying the important 

position of head of a department a performance of duty actuated by the highest 
ideals, independent of any personal inconvenience, extra hours, or diverting causes. 
A thorough, zealous, and efficient performance of such duties as may be assigned 
should be an ideal sacred to every officer. If difficulties arise the officer must sur- 
mount them and adopt or procure to be adopted such means as will produce efficient 
results. C. M. O. 28, 1914, 5. See also C. M. O. 14, 1915, 1; 17, 1915, 3. 

63. Impugning motives— Officers should not express opinions upon or impugn the 

motives of other officers. {See Navy Regulations, 1913, R-1405.) C. M. O. 28, 1894, 2. 
See also C. M. O. 3, 1887, 2; Correspondence; Officers, 21, 64, 69. 

64. Same — Officer tried by court-martial for expressing an opinion upon and impugning 

the motives of his superior officer. C. M. O. 4, 1911, 4. 



OFFICERS . 431 

65. Influence— Using influence to evade proper tours of professional duty. See Officers, 

49. 

66. Initiative. See C. M. O. 37, 1915, 5, 6. 

67. Insubordinate. C. M. O. 4, 1911, 2, 5, 8. 

68. Insulting officers and ladies. See C. M. O. 2, 1907. 

69. Language— A letter from a junior should be " couched in such language as should 

prevail in a letter from a junior to a senior." File 26806-131:24:1, Sec. Navy, July 
9, 1915. See also Correspondence; Officers, 21, 63, 64. 

70. Law — The service must understand and appreciate the fact that the Navy exists and 

is maintained by law alone; that its officers are superior in authority to the enlisted 
men only because the law has so elevated them; and that it is the interest of all officers, 
as well as their dutv, to adhere with scrupulous fidelity to the laws enacted for their 
guidance. G. O. 168, Jan. 6, 1872. 

71. Legal matters— The officers of the service can not be expected to become expert in 

the abstruse features of the law, but the department has a right to expect and does 
expect of courts a familiarity with those articles in the Navy Regulations in which 
the essential features of military trials are categorically prescribed. These essential 
features, though appearing as regulations, are in nearly every instance, the brief of 
statutes or of various decisions which have the force of law, and frequently a failure 
to comply with them renders the procedure wholly illegal. C. M. O. 5, 1915, 5. 

72. Leave of absence. See Leave of Absence. 

73. Letter— Threatening letter written by one officer to another. See Officers, 3, 118. 

74. Manner in handling enlisted men — The promotion of an officer was held up until 

certain defects in his manner of handling enlisted men, as shown by his fitness reports, 
were completely eradicated. In this case the department stated: "In the opinion of 
the department, a dictatorial and an unnecessarily severe manner in handling enlisted 
men is one of the most serious defects thatcan be possessed by an officer. An officer is 
necessarily charged with much authority, and the abuse thereof, more than any other 
one feature in an officer's character, is conclusive as to his unfitness for the trust 
imposed in him." File 26260-2879:1, Sec. Navy, Nov. 3, 1915; C. M. O. 42, 1915, 11. 

75. Marine officers— Rank and precedence. See Precedence, 14-19. 

76. Medical officers. See Medical Attendance; Medical Officers of the Navy. 

77. Members of courts-martial. See Members of Courts-Martial. 

78. Midshipmen— When considered an "officer" and when not. See Midshtpmen, 58, 

59; "Office," 3. 

79. Naval instructions, 1-3117 (1) and 1-3118 (2)— Engineer officer chargeable with knowl- 

edge of. CM. 0.37, 1915,4. 

80. Navy Regulations— Officers are presumed to know. C. M. O. 5, 1914, 5; 7, 1914, 15. 

81. Same— An officer's repeated violations of the Navy Regulations stamps him as un- 

trustworthy and not a proper person to maintain discipline and exercise command 
over others. File 25250-1392, J'. A. G., June 29, 1911, p. 13. 

82. "Office." See "Office." 

83. Officer of the United States. See Officers of the United States; "Office," 4. 

84. Pay— Full pay is necessary for the proper maintenance of an officer on the active list. 

See Pay, 100, 109. 

85. Paymaster — Charged with various serious offenses and tried by general court-martial— 

The department stated in part that: The transaction, however, it must be said in con- 
clusion, is, in any sense in which it may be reviewed, disgraceful to the accused, and 
to the Navy. It would seem to have been a violation of the spirit if not of the letter 
of section 1781 of the Revised Statutes. C. M. . 76, 1896, 13. 

86. Personal matters— The Secretary of the Navy declined to give a retired officer advice 

concerning any action which he might take in matters of a purely personal nature in 
which the Navy Department is not authorized to take action of any kind. The 
proper course of an officer would be to consult a private attorney at his own expense. 
Memo. J. A. G., Aug. 5, 1916. See also Legal Assistance for Officers and En- 
listed Men. 

87. Personal relations— Of accused (officer) and other officers of his ship. C. M. O. 5, 

1903. See also Clemency, 40. 

88. Plea in bar — Shielding himself behind— An officer being charged with " Drunkenness 

on duty" pleaded in bar of trial stating that he had already been punished for the 
offense. The court complied with the proper procedure, forwarded the record to the 
department, who returned the record advising the court to proceed with the trial. 
The court again respectfully adhered to its former decision in regard to the plea in bar 
of trial. The department after severely criticising the court stated in part: " Turn- 
ing from the action of the court to that of the officer concerned, it is sufficient to say, 

50756°— 17 28 



432 OFFICERS. 

irrespective of the legal aspects of the matter, that by shielding himself behind a 
technical plea" the accused "has practically admitted his guilt. The case of an 
officer of the Navy who is obliged to admit, by a plea of this character, that he does 
not deem it prudent to submit the question of his guilt or innocence of a grave charge 
to the judgment of a court-martial, is most deplorable. It is wise that an officer 
should reflect, before declining to face charges preferred aginst him, that although he 
may, as in this instance, through the error of the court, by the interposition of a purely 
technical plea based upon insubstantial grounds, succeed in escaping punishment for 
a gross offense, he must, by suchan act, necessarily imperil his standing with the serv- 
ice at large and the department, and leave upon his record a stain which is all the more 
unfortunate because the precise nature and degree of his offense is never judicially 
determined." C. M. 0. 104, 1897, 6. See also Officers, 116; Plea in Bar, 8. 

89. President— An officer who is so grossly ignorant as not to know that the President of 

the United States is Commander in Chief of the Army and Navy, or who is so insub- 
ordinate in spirit that he will not hesitate to denounce and treat with disrespect the 
Chief Magistrate, or any superior officer, however exalted in rank, is not only wanting 
in the qualities of a gentleman but is wholly unfit for military service. Whatever 
latitude of denunciation or abuse civilians may chose to indulge in with regard to the 
authorities of government, officers of the Navy can claim no such privilege, even under 
the plea that they have a right to express their opinions on political subjects. Such 
license is utterly incompatible with the existence of military discipline, and at the same 
time is unnecessary to the most perfect freedom of opinion, either in religion or politics. 
A naval officer should be a gentleman in language and deportment. Good sense and 
good breeding will always enable any individual to express his opinions without 
giving just cause of offense, and the officer who can not do so is as much deficient in 
those qualities as he is in a sense of military duty when he treats his superior with 
disrespect. In this case a second assistant engineer was tried by general court-martial 
for "Using language disrespectful to the President of the United States," the specifi- 
cation alleging that he "used language disrespectful to the President of the United 
States,_ declaring that the President had violated his pledges to the people and ought 
to be impeached." G. O. 85, Oct. 11, 1867. See also President of the United 
States, 5. 

90. Private debts— Legality of an order to pay. See Debts, 17, 18. 

91. Private litigation— Government will not compel testimony. See Witnesses, 89. 

92. Private reprimand. See Private Reprimands. 

93. Promotion of. See Marine Examining Boards; Naval Examining Boards; 

Promotion. 

94. Public reprimand. See Officers, 101; Public Reprimand. 

95. Qualifications of — Officers in the naval service are selected with great care: they 

are trained and educated by the Nation, and required to meet a standard of mental 
and physical excellence which is beyond the reach of the average man. Much is 
expected of them, and happily the expectation is not often disappointed. They are 
placed in charge of complicated mechanism; they deal with the most dangerous forces 
known to mankind; they command men whose duty it is to obey without question. 
In the exercise of these high fu notions there is rightfully demanded of them knowledge, 
discretion, prudence, and a care and foresight proportioned to the consequences which 
may follow any default. C. M. O. 101, 1903, 9. 

96. Same— A statute prescribing the qualifications necessary for appointment as an officer 

in the Navy, being in derogation of the appointing power should be strictly con- 
strued and not extended by implication to include anything which does not clearly 
come within the meaning of the language used. File 8622-2, Feb. 10, 1908. 

97. Same— "The accused in this case is an officer holding a commission as commander 

and performing the duties of his rank. An officer assigned to duty of importance in 
command of a vessel of the Navy must be held to a strict responsibility for the efficient 
performance of that duty. C. M. O. 23, 1916, 2. See also Navigation, 31 (p. 413). 
"It is necessary that the Navy have officers who are able successfully to discharge 
their duties under more or less unfavorable conditions." File 6465-03, J. A. G., July 
22, 1903. See also Navigation, 31. 

98. Quarters— Agreement as to. See Officers, 3. 

99. Rank and title. See Rank; Precedence. 

100. Reduction In rating— To ordinary seaman. See Reduction in Rating, 24-27. 

101. Reprimand— "The good order and decorum of that service can be maintained only 

by a rigid observance of the respect due to rank and by condemning and restraining 
all undue exhibitions of temper by officers at the expense of tne rights and feelings 
of others. 



OFFICERS. 433 

"When under the influence of passion, an officer oversteps the restrictions of dis- 
cipline and violates the rules of propriety in the language he addresses to a brother 
officer, it becomes the part of those in authority to administer to him such a rebuke 
as may remind him of his duty and deter him from again offending in the same way. 

"The indecorous, violent and profane language" of the accused, and his threatening 
gestures on this occasion, were unprovoked. They were applied to a brother officer 
whose hands were tied by the laws of the Navy, and who could neither resent the 
affront put upon him, nor even reply to it. It was neither just nor generous under 
the circumstances thus to take advantage of his own rank at the expense of an inferior. 

"Some atonement was made by" the accused by an apology for his offense when 
his blood had time to cool. This, however, was after he was told that the matter 
would be reported to the department. 

The accused "should bear in mind that his high standing in the service enjoins 
upon him the duty of restraint upon his anger, and he should see hereafter that he be 
not hurried into the use of language and into a course of conduct toward others 
calculated to wound their feelings and to expose him to the censure of authority." 
C. M. O. 31, 1881, 2-3. See also Apology, 1; Officers, 117. 

An officer was censured for violating Navy Regulations, 1909, R-226, and a letter 
placed on his record. File 26836-7:12, Sec. Navy, July 15, 1915. 

102. Respect— Every officer in the Navy should cherish a respect for authority, law, regula- 

tion, and gentlemanly decorum. G. O. 213, June 27, 187G. 

103. Resignations. See Resignations. 

104. Retired officers. See Retired Officers. 

105. Ruffianly assault. See Assault, 21. 

106. Secretary of the Navy not required to place on duty an officer guilty of offenses 

such as render him unfit for association with other officers and their 
families— May place him on furlough— Where an officer is found guilty of vulgar 
and indecent acts and associations, the Secretary of the Navy would not be required 
to order him to duty, but if not sentenced to dismissal might place him on furlough, 
as authorized by section 1442 of the Revised Statutes, which would mean that, in 
accordance with section 1557 of the Revised Statutes, he must receive half pay, thus 
imposing expenditures upon the Government from the appropriations for the Naval 
Service without receiving any return therefor. File 26251-11181, Sec. Navy, Dec. 17, 
1915; G. C. M. Rec. No. 31436; C. M. O. 49, 1915, 27. 

107. Seniors — Should have proper attitude toward juniors. C. M. O. 41, 1915, 9-10. 

108. Sentence disapproved — As an approval wouid tend to establish a precedent that 

would convey a false impression of the requirements of a naval officer in the per- 
formance of his duty. C. M. O. 8, 1915, 3. 

109. Sentences. See Confinement; Hard Labor; Numbers, Loss of; Pay; Reduction 

in Rating; Suspension from Duty. 

110. Sentinels — An officer who was disrespectful, abusive, etc., to a sentinel was tried by 

general court-martial under "Conduct to the prejudice of good order and discipline." 
C. M. O. 95, 1893. See also Countersign; Sentinels, 1, 14, 18; C. M. O. 1, 1917. 

111. Status of— Not affected by position in Navy Register. See Navy Register, 2. 

112. Superior officers. See Officers, 33; Superior Officers. 

113. Suspension— Delivery of sword. See Arrest, 26, 39. 

114. Suspension from duty. See Suspension from Duty. 

115. Sword— Surrender of , when placed under arrest. See Arrest, 26, 39. 

116. Technical pleas and quibbles— In a certain case the department availed itself of 

the occasion to correct an erroneous impression, which, it would appear by the line 
of defense adopted in behalf of an officer tried by general court-martial, is entertained 
as to the responsibility of commanding and navigating officers. If public property 
to a large amount is lost, and the lives of a numerous crew are placed in imminent 
jeopardy while under the care of officers whose special duty it is to guard them from 
danger, and who are well compensated for the discharge of this duty, tne department, 
as well as the public, will cast upon these officers the burden of proving that the loss 
did not occur from any negligence on their part, and they will not be permitted by 
a military court to profit by the technical pleas and quibbles which have been worn 
out in the service of petty criminals before the lowest civil courts. G. O. SO, Pee. 
30, 1867. See also Officers, 88. 

117. Temper, loss of— In losing control of his temper, even though the provocation is 

exceedingly great, and in resorting to vile epithets, an olhcer'shows a lack of judg- 
ment and a lack of observance of military propriety which reflects upon himself 



434 OFFICEKS. 

rather than upon the person who offends him and he thereby causes a diminution 
of the respect and confidence which he has enjoyed, and which would have been 
increased had he kept control of his speech and taken proper measures in seeking 
redress for the wrongs which he felt had been done to him by his subordinate. C. 
M. O. 45, 1909. See also Officers, 101. 

118. Threatening letter — Naval officer tried by general court-martial for writing a threat- 

ening letter to his senior. G. O. 137, Sept. 7, 1869. File 2G251-12159. 

119. Trial by court-martial— The only court-martial which has jurisdiction to try com- 

missioned officers of the naval service is the general court-martial. C. M. O. 7, 1914, 9. 

120. Unbecoming attitude— On part of senior is subversive to good order and discipline. 

C. M. O. 41, 1915, 9-10. 

121. "Untruthful"— Officer branded as untruthful. C. M. O. 24, 1910. 

122. Vile epithets— Used by officer. See C. M. O. 18, 1910, 2; Offkers, 117. 

123. Violating civil law— Exceeding speed limit— Tried by general court-martial. G. C. M. 
Rec, 31509, p. 6 of the charges and specifications. 

124. Vulgar and indecent acts. See Officers, 106. 

125. Warrant officers. See Warrant Officers. 

126. Watch officers. See Officer-of-the-Deck; Watch Officers. 

OFFICER OF THE DAY. See also Judge Advocate, 75. 

1. Responsibility of— The officer of the day, under the direction of the commanding 

officer is responsible for the perfect execution of the post routine. The supervision 
of such minor details as the position of the colors on the flagstaff and the proper 
sounding of the bugle calls are as much a part of his military duties as the inspection 
of reliefs of the guard, and are no more beneath his dignity. Moreover, it is the 
attention to or neglect of such small details, as well as the more important ones, that 
marks the distinction between an efficient and an inefficient post. C. M. 0. 4, 1911, 1. 

2. Tried by general court-martial. C. M. O. 35, 1916. 

OFFICER-OF-THE-DECK. See also Navigation. 

1. Authority and responsibility of. Sec Officer-of-the-Deck, 8-11. 

2. Bunk— Officer-of-the-deck tried by general court-martial for being in his bunk in his 

stateroom, while the all-hands evolution of coaling ship was in progress. C. M. O. 
15, 1909. 

3. Cigarette smoking— There is no occasion for an officer while on duty as officer-of-the- 

deck for smoking a cigarette, and, if doing so brings on nausea and a state of irre- 
sponsibility, his condition should be considered as due to his own misconduct or, at 
least, carelessness and indifference in the performance of duty, and instead of going 
to mitigate the other offenses should aggravate them. C. M. O. 25, 1909, 2. 

4. Drunk. " See Drunkenness, 99. 

5. Lying down while on duty— A "master" who was on duty as officer-of-the-deck on 

board the U. S. S. Yantic "did spread a pea-coat on an arm-chest near the cabin 
companion way on the poop deck, and did lie down," when a "Norther" was antici- 
pated—Tried by general court-martial. C. M. 0. 16, 1882. 

6. Navigation— Officer-of-the-deck tried by general court-martial for neglecting and fail- 

ing to exercise proper care in navigating vessel while approaching certain reefs, in that 
he neglected and failed to lay a proper course in consequence of which the vessel was 
stranded on a reef. C. M. O. 25, 1909. 

Tried by general court-martial for changing course without nothying commanding 
officer. C. M. O. 30, 1909. 

7. Same— If there, is an emergency, such as imminent danger of collision, the officer-of-the 

deck should change the vessel's course without orders from the commanding officer 
and shall report his action to the commanding officer without delay. G. M. O. 44, 
18S3, 3. See also Emergency, 3; Orders, 26, 49. 

8. Representative of commanding officer. — The officer-of-the-deck as representative 

of the commanding officer of a naval vessel is entitled to obedience from all officers 
of whatever rank, whether of line or staff. C. M. O. 67, 1892, 2. 

9. Responsibilities of— Few men have greater responsibility of property, life and national 

honor immediately resting upon them than a watch officer of a vessel of war while at 
sea. An officer who is guilty of drunkenness, when liable to be called upon to assume 
this responsibility, commits" a crime of the gravest nature, for the consequences of his 
crime may be fatal to his ship and to all on board. C. M. O. 22, 1884, 2. 



OFFICER-OF-THE-DECK. 435 

10. Same— The officer-of-the-deck for the time being, is vested, in case of emergency, with 
the entire control of the vessel's movements. While under ordinary circumstances, 
he should not change her course without orders from the commanding officer, yet, if 
there is danger of collision, he should promptly so change it, according to his judg- 
ment, as to avoid the danger. The authority thus vested in him is absolute ; the only 
limitation being that he shall report his action to the commanding officer without 
delay. The power conferred carries with it a corresponding degree of responsibility, 
and the officer who, while entrusted with it, fails in its proper exercise, either in giving 
the necessary order or in seeing it obeyed, must be held responsible for the con- 
seqiience of his neglect. C. M. O. 44, 1883, 3, quoted with approval in C. M. O. 4, 
1914, 9, with approval. 
. 11. Same— The importance of a proper performance of duty by an officer in charge of the 
deck of a vessel at sea can not be overestimated. This includes not merely a vigilant 
lookout and prompt action on his own part; it requires that he shall also see that his 
orders are carried into effect. If he is negligent in this particular, he suffers the neglect 
of others to impair his own efficiency and to bring about disaster. C. M. . 41, 1883, 2. 

12. " Sleeping on watch "—In a case where an officer-of-the-deck was found guilty on 

his own plea of "Sleeping on watch" the department stated in part: The charge and 
specification to which the accused pleaded guilty, were based upon an offense, " Sleep- 
ing on watch," which, while wholly inconsistent with the general obligation of all 
officers to perform their duties faithfully, is especially so, considering the peculiar 
nature of the duty entrusted to a watch officer. As officer-of-the-deck during those 
hours of the night when vigilance is the most indispensable requisite, the accused was 
charged with a special responsibility. It was his duty not only to be vigilant himself 
but to see that his subordinates in the watch, for the time being, were equally so. 
Instead of appreciating that responsibility as he should have done he apparently 
relied upon the vigilance of others rather than upon his own." C. M. O. 43, 1884, 2. 

13. Same — An officer-of-the-deck was found guilty of "Sleeping upon his watch." The 

Secretary of the Navy felt it incumbent upon him to express in most emphatic terms 
his disapproval of the conduct of the accused . Part of the defense was that the accused 
was ill. "Sickness has never been regarded as an excuse even in the case of an en- 
listed man for his abandoning his station before being regularly relieved, neither 
should it be so considered in the case of an officer-of-the-deck of a battleship who, 
because of his experience, is bound to be cognizant of means by which, if indisposed, 
he could be regularly relieved." The accused's conduct was reprehensible and merits 
and receives the censure of the department. He has shown himself unfitted for the 
responsible duties of an officer of the Navy. C. M. O. 25, 1910, 2. 

14. Same— Officer-of-the-deck was found guilty of "Drunkenness on duty" and "Sleeping 

on watch," while ship was underway. CM. O. 34, 1912, 2. 

OFFICERS OF THE UNITED STATES. See also Decorations. 

1. Accepting office from foreign States— Article I, section 9, clause 8, of the Constitu- 

tion of the United States prohibits any person holding any office of profit or trust 
under the United States from holding or accepting any office, present, emolument, or 
title from any foreign State ; unless Congress shall consent thereto. While officers of 
the United States on duty m Haiti could not, without the consent of Congress, hold 
office, receive emolument, etc., under the Haitian Government, they are not pro- 
hibited by the Constitution or any law of the United States "from rendering a 
friendly service" to that State, such as assisting to organize a gendarmerie (See Op. 13 
Atty. Gen. 537, 538). However, at the present date there is no authority whereby 
such officers could become officers in such a force by appointment from the Govern- 
ment of Haiti. File 5526-33, Sec. Navy. Oct. 28, 1915; C. M. O. 35, 1915, 11. 

2. Accepting decorations, etc. See Decorations. 

3. Definition. See "Office," 4. 

OFFICIAL CHANNELS. 

1. Military orders— The right of a commanding officer of a fleet, division, squadron, or 
naval station, to address a proper military order of any kind to an officer under his 
command, through the usual official channels, can not be questioned. (See File 
4469, Mar. 22, 1906, placing a Marine officer under arrest; and File 6489, Jan. 14. 1907, 
suspending an ensign.)- In these cases the orders were addressed to the offenders by 
name, through the immediate commanding officer, which procedure was upheld by 
the department. See File 2649-9, Dec. 5, 1906. See also File 2795S-4, Sec. Navy, 
Aug. 18, 1916. 



436 opinion. 

official communications. 

1. Titles — "All official communications intended for officers holding positions with recog- 
nized titles shall be addressed to them by title and not by name, as ' The Secretary of 
the Navy/ 'Bureau of Navigation,' 'The Commandant/ 'The Commander in Chief, 

Fleet (or Squadron)/ 'The Commander, Squadron (or Division)/ 

'The Commanding Officer.' 'The Major General Commandant, Marine Corps.' " 
(Naval Instructions, 1913, 1-5322 (2).) File 9160-5990, Sec. Navy, Nov. 15, 1915.. 
See also File 20400-68, Mat-4-ml, Sec. Navy, Sept. 6, 1916; Designations, 1. 

OFFICIAL. CORRESPONDENCE. See Correspondence; Official Communications. 

OFFICIAL RECORDS. 

1. Desertion— Proof of by. C. M O. 28, 1904, 3-4. See also Service Records. 

2. Evidence, as. C. M. 0. 28, 1904, 3-4; 31, 1915, 14-16. See also Evidence, Documentary. 

OHIO NAVAL MILITIA. See Collision, 14; Naval Militia, 3. 
OLONGAPO, P. I. 

1. Jurisdiction — And powers of Navy over Naval Reservation, Subig Bay, P. I. See 

Jurisdiction, 94-96. See also 26 Op. Atty. Gen. 91; File 681-04. 

"ONE OFFICER" BOARD OF INVESTIGATION. See Boards of Investigation, 15. 
"ONE OFFICER" BOARD OF MEDICAL EXAMINERS. See Boards, 1. 
"ONE OFFICER" COURT OF INQUIRY. See Courts of Inquiry, 38, 39. 
"OPEN COURT." See Court, 126, 127. 

OPENING MAIL. 

1. Enlisted man— Tried by general court-martial for unlawfully opening mail. C. M. O. 
6, 1915, 3. 

OPERATIONS. See Surgical Operations. 

OPINION. 

1. Board of inquest— Opinion to be expressed on line of duty and misconduct. See 

Boards of Inquest, 5. 

2. Challenges — Members of courts-martial expressing opinions as to guilt or innocence 

of accused. See Challenges, 16, 17. 

3. Court— Should not allow witnesses to state directly their opinions as to guilt or inno- 

cence of accused. See Expert Witnesses, 12, 13; Opinion, 15. 

4. Drunkenness. See Opinion, 17. 

5. Evidence— Expert witnesses. See Expert Witnesses, 12, 13. 

6. Same— From the examination of a general court-martial record it appeared that the 

following question was asked a witness for the prosecution: 

"Was the slap you received from the accused given without provocation or justi- 
fiable cause and with malicious intent?" and that questions of a similar character, 
in effect calling for opinion, and thus clearly improper, were asked of other witnesses. 
Inasmuch, however, as the accused was acquitted upon the charge to which the testi- 
mony relates, and was found guilty only of the charges to which he so pleaded, the 
putting of such questions was regarded by the department as error without injury, 
and the sentence was approved. C. M. O. 59, 1898. See also C. M. O. 41, 1909, 1. 

7. Expert witnesses — Expression of opinions. See. Expert Witnesses, 12, 13. 

8. General courts-martial— Member disclosing opinion of other members, etc. See 

Criticism of Courts-Martial, 22, 35, 36. 

9. Judge Advocate — Opinion allowed on record of proceedings. See Judge Advo- 

cate, 59, 97. 

10. Members of courts-martial— Expressing opinion as to guilt or innocence of accused 

subject to challenge. See Challenges, 16, 17. 

11. Same— Divulging opinions of other members. See Criticism of Courts-Martial, 22, 

35, 36; Oaths, 47; Reports on Fitness, 3. 

12. Record ol Proceedings— Opinion of judge advocate allowed in record. See Judge 

Advocate, 59, 97. 

13. Sanity. See Opinion, 17. 

14. Summary courts-martial— Members disclosing opinions. Sec Criticism of Courts- 

martial, 36; Oaths, 47; Reports on Fitness, 3. 



opinion. 437 

15. Witnesses— "It was decidedly irregular and improper for the court to allow the witness 

to be questioned upon the legal point that the court had been assembled to decide. 
Witnesses are not competent to express opinions upon points of law nor to apply 
the standard of law involved in the case. Evidence should be confined to testimony 
of facts; the inferences to be drawn from the established facts, must be drawn by the 
court alone. 

The question whether or not the accused is guilty or innocent is the very question 
which the court must determine, and the action of the court in allowing a witness 
to state directly his opinion upon the specific question is irregular. (See Index- 
Digest, 1914, p. 20; G. C. M. Rec. No. 31458, action of C. A.). C. M. O. 49, 1915, 15. 
See also C. M. O. 22, 1916; 161, 1902; Ct. Inq. Rec. 4952, p. 48; Court 199. 

16. Same— Expert witnesses expressing opinions. See Expert Witnesses, 12, 13. 

17. Same — Must state facts not opinions — Witnesses must confine themselves to state- 

ments of fact. Opinions are not admissible, except in three cases, as follows: (a) 
Opinions which are conclusions drawn from numerous facts within the daily observa- 
tion and experience of a witness. Such relate to the demeanor or appearance of a 
person; his sanity, sobriety, or identity, or his resemblance to another; his physical 
condition, whether sick or well; his condition as regards emotion or passion, as to 
anger, hope or fear, joy or sorrow, excitement or coolness, and the like. These are 
matters of everyday occurrence with respect to which all thoughtful persons form con- 
clusions of fact, to which they are competent to testify in a proper case; (b) opinions 
of experts; (c) opinions as to handwriting. (Forms of Procedure, 1910, pp. 139-140.) 

OPINIONS AND DECISIONS DEFINED AND DISTINGUISHED. See Judge 
Advocate General, 30. 

"OR OTHERWISE." See Statutory Construction and Interpretation, 85. 

ORAL ARGUMENTS. See Arguments, 4; Briefs, 1. 

ORDERS. See also Disobedience of Orders; Emergency; Obedience. 

1. Accomplice — Officer issuing illegal order which is obeyed is an accomplice, etc. See 

Accomplice, 1. 

2. Ambiguous orders— Issued by a commanding officer caused the loss of certain target 

rafts. File 26262-1194, J. A. G., June 16, 1911, p. 3. 

3. Annulling— Attention is invited to article 1716, paragraph 2, United States Navy 

Regulations, 1909 [Navy Regulations, 1913, R-727 (2)], as follows: 

"In case of an order from a superior officer the provisions of article 221, paragraph 
2, shall be complied with. The report of circumstances shall be fonvarded by the 
member receiving such order to the convening authority through the president of 
the court, and a copy of such report shall be attached to the record of each case to 
which it applies." 

Also to article 221, paragraph 2, United States Navy Regulations, 1909 [Navy 
Regulations, 1913, R-1513 (2)], as follows: 

"If an officer receives an order from a superior annulling, suspending, or modi- 
fying one from another superior, or one contrary to instructions or orders from the 
Secretary of the Navy, he shall exhibit his orders, unless confidential and he has been 
forbidden to do so, and represent the facts in writing to the superior from whom the 
last order was received. If, after such representation, the latter shall insist upon the 
execution of his order, it shall be obeyed, and the officer receiving and executing it 
shall report the circumstances to the superior from whom he received the original 
order." C. M. O. 23, 1912, 5-6. 

4. Appeals from— The proper course for subordinate upon receiving an order which 

requires the doing of an illegal act is to appeal to the officer issuing the order, or if 
necessary to higher authority, for revocation, modification, or correction thereof. 
[See Appeals 11.) But where there is an emergency which will not permit of delay, 
he should disregard the order without such appeal. C. M. O. 37, 1915. 

5. Same— In time of peace at least an officer is not obliged to obey an illegal order. It 

becomes his duty, at once, or within a reasonable" time, to appeal to the highest 
authority for revocation, modification, or correction of the illegal order. (Ide v. U. S , 
25 Ct. Cls. 407; 150 U. S. 517.) See C. M. O. 37, 1915. 

6. Boilers exploding— As a result of obedience to an illegal order. See C. M. O. 37. 1915, 

7. Carried out— An officer is under a duty to see that the orders he gives are carried out 

C. M. O. 41, 1883, 2; 44, 18S3, 3. 



438 ORDERS. 

8. Chance— Orders to take a "chance." See C. M. O. 37, 1915, 5. 

9. Comptroller of the Treasury — Can not relieve officers of duty to obey orders. See 

Comptroller of the Treasury, 8. 

10. Confession — Orders to make a confession. See Confessions, 17, 18. 

11. Confidential orders. See Orders, 3. 

12. Conflicting orders. See Orders, 3. 

13. Contempt of authority—" Whoever deliberately disobeys an order given by com- 

petent authority is in legal contempt of such authority." G. 0. 182, April 2, 1873. 

14. Correction of orders. See Orders, 3. 

15. Countermanding — An officer was tried by general court-martial for unlawfully and 

unjustifiably countermanding certain lawful orders issued to the coxswain of a steam 
launch by a patrol officer. C. M. 0. 10, 1908, 1. 

16. Court-martial duty. See Convening Authority, 32; Court, 34-51. 

17. Danger, time of. See Collision, 17, 19; Commanding Officers, 38; Orders, 53. 

18. Debts— Orders to pay. See Debts, 17, 18; 

19. Decisions of the department— As an order or command. See Judge Advocate 

General, 30. 

20. Defense— An officer tried by general court-martial for "Culpable inefficiency in the per- 

formance of duty" and "Neglect of duty" based his defense upon the fact that he had 
received orders to expedite the loading of his vessel and to proceed to sea and to his 
destination with despatch, believing that an emergency existed. File 26262-1194, 
J. A. G., June 16, 1911. See also Orders, 52. 

21. Deviation from. See Orders, 3, 52. 

22. Disbursing officers — Orders by commanding officers to make payments. See Dis- 

bursing Officers, 10; Pay Officers, 4. 

23. Disobedience of orders. See Disobedience of Orders. 

24. Division commander— A division commander gives an order "Head for the light, 

Captain," to the commanding officer of his flagship. The commanding officer enters 
no protest, but gives the necessary orders. The ship goes aground. Division com- 
mander, commanding officer, and navigator are tried by general court-mgrtial. See 
C. M. O. 24, 1916; 26, 1916; 27, 1916; Navigation, 31. 

25. Drunkenness — No excuse for not obeying orders. See Drunkenness, 36. 

20. Emergency— Senior officer actually present on the spot has duty of taking necessary 
action upon his own initiative to prevent injury to lives and property under his charge ; 
and where the emergency is immediate and urgent he is not justified in delaying the 
necessary action because of an order issued by his superior officer before the emergency 
occurred and under a materially different state of facts. C. M. O. 37, 1915, 1. See 
also Emergency, 1: Orders, 49. 

27. Examination for promotion— In Navy prior to a vacancy. See Promotion, 132. 

28. Excuse — Only valid excuse for disobedience of orders is a physical impossibility to 

obey them. See Orders, 52. 

29. Failure to obey promptly— Failure promptly to obey a military order is not to be justi- 

fied by the fact that a subordinate and his commanding officer entertain different 
views as to the interpretation of some minor provision of law or regulation. If the 
superior is wrong, his is the responsibility. File 1192-1, Sec. Navy, Mar. 21, 1905. 

"In assuming that he should wait for a second order when first order had not been 
rescinded, Ensign * * * did not show that appreciation of discipline which is 
expected of a commissioned officer in the Navy. His failure to carry out his 
orders showed a dilatoriness which the department considers reprehensible." 
C. M. O. 3, 1912, 3. 

30. Folly resulting from obedience, See Orders, 47. 

31. General orders— Legality of. See General Orders, 3. 

32. "Good of service required" deviation from orders. See Orders, 52. 

33. Illegal orders — An officer refused to obey an order on ground "he did. not consider it a 

legal order." G. O. 140, Sept. 17, 1869. 

Illegal action can not be justified by the order of superior authority where the 
circumstances are such that the subordinate should have recognized the illegality 
of the order as applied to the action which it commanded. C. M. O. 37, 1915, 1. 

34. Inferior, order of— Of equal importance with prompt and unquestioning obedience 

to the orders of a superior, is the necessity for immediate compliance with the orders 
of an inferior who, while filling: a position of trust, as a sentinel, without independent 
authority, has a most delicate duty to perform in compelling compliance with orders 
by a superior in rank. C. M. O. 95, 1S93, 3. See also Orders, 60; Sentinels, 14, 18, 



ORDERS. 439 

35. Judge advocates— Orders to court-martial duty. See Convening Authority, 32; 

Court, 34-51; Judge Advocate, , 98-102. 

36. Judgment, mistake of. See Orders, 45. 

37. Lawful orders — A person is bound to' obey only lawful orders. C. M. O. 37, 1915, 7. 

38. Same — A medical officer was ordered by his commanding officer to take off of the 

binnacle list the name of an ordinary seaman. On receiving this positive order, 
the medical officer retired without refusing to obey, and the commanding officer 
rested during the day, under the impression that it had been complied with. In 
the afternoon of the same day, however, finding that this was not the case, he sent for 
the officer to the shore, whither he had gone without obeying the order previously 
given him, and on his arrival the commanding officer explicitly repeated the order. 
The medical officer refused to obey, and persisted in his refusal; then, for the first 
time, alleging as a reason, that he could not conscientiously obey said order. He 
was therefore ordered to consider himself under arrest, and the original order was 
given to, and obeyed by, another officer. 

In this case the officer was directed, not to declare any false opinion, nor to inflict 
on any individual any act of false practice in his profession, but merely to take the 
name off of a list made by him and under his immediate supervision, to do, by order 
of his commanding officer, a specific affirmative act, the only result of which was 
clearly within the authority of the officer giving the order. For that result the 
officer receiving the order had no responsibility. 

The officer retained his right to remonstrate; to continue his treatment and record of 
the case, to enter his respectful protest on his journal; to report to the department 
and to prefer charges for unnecessary hardship and wrong; but it remained with the 
responsible commander alone to determine what duty, what exposure of life, if 
need be, the interests or exigency of the service required from each of the officers and 
crew of his ship. G. O. 140, Sept. 17, 1869. 

39. Same— Denned— Tt is not questioned, and it has been repeatedly recognized by the 

courts, that the first duty of a military man is obedience, and that without this there 
can be neither discipline nor efficiency in the military forces. (See General Orders 
Nos. 140, Sept. 17, 1809, and 182, Apr. 2, 1873. ) In the language of the Supreme Court, 
"an army is not a deliberative body. It is the executive arm. Its law is that of obe- 
dience. No question can be left open as to the right to command in the officer, or 
the duty of obedience in the soldier." (In re Grimley, 137 U. S. 153.) But it is 
equally well settled that a person in the military service is bound to obey only the 
lawful orders of his superiors. If he receives ah order to do an unlawful act, he is 
bound neither by his duty nor his oath to do it. "So far from such an order being a 
justification, it makes the party giving the order an accomplice in the crime." ( U. S. 
v. Carr, 25 Fed. Cas. No. 14732.) Quoting again from the Supreme Court, "it can 
never be maintained that a military officer can justify himself for doing an unlawful 
act by producing the order of his superior. The order may palliate, but it can not 
justifv." (Mitchell v. Harmony, 13 How. 115. See also L. R. A., 1915 A, 1141, note 
to Franks v. Smith, 142 Ky. 232, 131 S. W. 484.) 

The courts have repeatedly recognized that a military command is not to be turned 
into a debating school, upon the receipt of orders from superior authority, with the 
result that the precious moment for action may be wasted in wordy conflicts between 
the advocates of various opinions as to the validity or invalidity of the orders (In 
re Fair, 100 Fed. Rep. 149; U. S. v. Lipsett, 156 Fed. Rep. 71; McCall v. McDowell, 15 
Fed. Cas. No. 8673; U. S. v. Clark, 31 Fed. Rep. 710, 716); and therefore, while holding 
on the one hand that illegal action can not be justified by orders from superior author- 
ity, on the other hand the general duty of implicit obedience is never altogether 
overlooked. The result has been that somo courts have endeavored to formulate a 
rule to the effect that the military subordinate is protected in obeying an order of 
his superior "which does not expressly or clearly show on its lace its illegality" (In 
re Fair, 100 Fed. Rep. 149). The most liberal statement for the protection of the sub- 
ordinate who renders obedience is as follows: "Except in a plain case of excess of 
authority, where at first blush it is apparont and palpable to the commonest under- 
standing that the order is illegal, I can not but think that the law should excuse the 
military subordinate when acting in obedience to the order of hiscommander" (McCall 
v. McDowell, 15 Fed. Cas. No. 8673). See G. C. M. Rec. 323S9, p. 90. 

The Supreme Court has not yet gone so far as to subscribe to inis modification of 
the rule that an illegal order can not be a defense to a criminal charge but results 
merely in making the party giving the order an accomplice in the crime; however, t ho 
department does not hesitate in saying that, in so far as proceedings by courts-martial 



440 ORDERS. 



are concerned, a subordinate might, under certain conditions, justify illegal action 
by an order from superior authority, provided the order was not such that the sub- 
ordinate should have recognized its illegality as applied to the action which it com- 
manded. C. M. O. 37, 1915, 7-8. 

40. Legality of general orders— As to requirements in a general order. See General 

Orders, 3. 

41. Manual labor— An officer attempted to justify his disobedience of orders on the ground 

that it was to perform manual labor. The department stated : "Manual labor is not 
dishonorable in itself, and whenever any species of work, manualor otherwise, becomes 
necessary under any exigency in which any officer is placed, or is required by trie 
conditions of any duty to which he is ordered, or is prescribed by proper authority for 
his instruction or practice, or to qualify him to instruct others, then such wort is not 
only honorable, but is most officer-like, and specially becoming to those who, in- 
trusted, by tne favor of the Government with command in the service, are intrusted 
also with the preservation of its efficiency." This ground is false in itself, and if al- 
lowed the natural result of it would be \6 strike at the foundation of all discinline 
and efficiency in the service. G. O. 182, Apr. 2, 1873. 

42. Members of courts-martial— Orders to duty. See Convening Authority, 32; 

Court, 34-51; Members of Courts-Martial. 

43. Si. me— Absent by reason of an order of a superior officer. See Members of Courts- 

Martial, 2; Orders, 3. 

44. Same— Orders by Secretary of Navy detaching an officer who is also a member of a 

general court-martial convened by Secretary of Navy will operate to relieve such 
officer from the general court-martial. See Members of Courts-Martial, 37. 

45. Mistake of judgment— Disobedience of orders caused by a mistake of judgment in 

regard to professional rights and duties, rather than a deliberate intention of wrong, 
rarely require a severe, and never a disgraceful, punishment. G. O. 140, Sept. 17, 
1869. 

46. Modifying. See Orders, 3, 4. 

47. Obedience — "Obedience to the orders of superior authority is the first and plaines; 

duty of all officers, from which no one, of any class, is, or can be, exempted. 

'•Authority can not, of course, control the mind, nor require a false expression of 
either personal or professional opinion, and disobedience may be sometimes excused 
by the manifest illegality, enormity, or folly which would result directly from the 
execution of an order; but the general rule of obedience is qualified only to this extent, 
and can not, with safety, be relaxed beyond it." G. O. 140, Sept. 17', 18G9. See also 
Obedience, 1, 3. But see Orders. 52. 

48. Officer of the deck— The officer of the deck, as representative of the commanding 

officer of a naval vessel, is entitled to obedience from all officers of whatever rank, 
whether of line or staff. C M. O. 07, 1892, 2. See also Officer-of-the-Deck, 8. 

49. Same — Emergency — If there is danger of a collision the officer of the deck should 

change the vessel's course without orders from the commanding officer and shall 
report his action to the commanding officer without delay. C. M. O. 44, 1883, 3. See 
also Emergency; Officer of the Deck, 7; Oroers, 20. 

50. Pay officers — Orders by commanding officers to make payments. See Pay Officers, 4. 

51. Pay clerks and chief pay clerks— Assigned to duty with pav officers who no longer 

have the selection of their clerks. See Pay Clerks and Chief Pay Clerks, 11. 

52. Physical Impossibility to obey order— Is only excuse for disobedience of orders- 

Referring to a case of disobedience of orders for which the captain of a ship was tried 
in the English service, Harwood on Naval Courts-Martial (pp. 129, 130) states as fol- 
lows: 

"A captain had not fully executed the instructions he had received from the ad- 
miralty and was tried for disobedience of orders; the court declared the charge to be 
proved against him, but it appearing to the court that in deviating from his orders 
he had acted from a persuasion that, under the circumstances which then existed, the 
good of the service required it, they 'adjudged him to be acquitted. '" 

This of course was erroneous; the legality of the acquittal was naturally questioned 
and an opinion of the Crown lawyers was asked upon the matter. It was decided that 
the motive of the officer, i n acting for the good of the sen-ice might have been ground 
for imposing the lightest punishment, or for a pardon, but that it did not justify an 
acquittal. The Crown lawvers said (Harwoodf p. 130): 

"We are confirmed in this opinion by the judgment of Lord Mansfield and Lord 
Loughborough in the case of Sutton v. Johnstone, in which they lay it down as clear 
and indisputable law that nothingcan excuse a subordinate officer in the disobedience 
of orders but a physical impossibility to obey them." 



ORDERS. 441 

Here it is plainly indicated by high legal authority that there is a defense even to 
disobedience of orders; and, quoting from the language of the above-mentioned case, 
it was said: 

"If the state and condition of a ship be such that an order given can not be obeyed, 
the not obeying it in that case is not disobedience of orders, and requires no justifica- 
tion; but there ought to be an acquittal on the ground of the charge of disobedience 
not being made out." (Harwood, p. 130.) 

Not, however, be it observed, that the proof of the disobedience would suffice to 
find the accused guilty, and that the exculpatory facts should then be taken into 
account by the reviewing authority in mitigation, but very distinctly that where 
there is a valid defense to the accusation there should be an acquittal. C. M. O. 5, 
1912, 11-12. 

53. Precautionary orders— When source of possible danger is reported to the command- 

ing officer. See Collision, 12, 17, 19; Commanding Officers, 38. 

54. Refusal to obey orders — To take prophylactic treatment. See Typhoid Prophy- 

lactic, 2, 3; Venereal Prophylaxis, 1. See also File 28019-25, Mar. 29, 1912. 

55. Restraining orders. See C. M. O. 37, 1915, 9. 

56. Retired officers— To court-martial duty. See Retired Officers, 23. 

57. Same — To active duty. See Retired Officers, 1, 45. 

58. Revoking — Dissolution of court-martial — An order revoking the dissolution of a 

general court-martial is futile. See Court, 69. 

59. Secretary of the Navy— The orders of the Secretary of the Navy are orders of the 

commanding officer within the meaning of R. S. 285. File 26254-1451:11, J. A. G., 
April 12, 1915, p. 6. 

60. Sentinels— Orders of, should be obeyed. C. M. 0. 95, 1893, 3. See also Countersign 

Orders, 34; Sentinels, 1, 14, 18. 
Orders to sentinels to fire oh escaping prisoners. See Prisoners, 18, 19. 

61. Serious off ense— " Disobedience of orders is, under any circumstances, a serious 

offense, and when committed deliberately, by an intelligent officer, under a claim 
of right, must tend greatly to the subversion of discipline." G. 0. 140, Sept. 17, 1869. 

62. Smoker— Orders to attend "smoker." See Clemency, 37, 38; Drunkenness, 41; 

Smoker. 

63. Specific orders— Required for retired officers to act as court-martial members. See 

Retired Officers, 23. 

64. Subordinate not judge of legality of orders in first instance — It is true that no 

subordinate officer can be allowed to assume to be himself the judge, in the first 
instance, of the propriety of the duty to which he is assigned, or of the order which 
is given him by superior authority. In all cases where obedience does not involve a 
breach of law, human or divine, the first duty of the officer is to obey, exercising his 
right, if he sees occasion, of protesting at the proper time and in a proper spirit, and 
of appealing to the common superior to right any wrong which he may think he 
suffers. No other course is officer-like or consistent with discipline; none other is 
so expressive of personal dignity, nor can any other be tolerated in the service. 
These principles seem so plain that it is difficult to perceive how a well-meaning 
officer can fail to appreciate and carry them out. G. O. 182, Apr. 2, 1873. 

65. Suspension of. See Orders, 3. 

66. Time of danger — No officer would be justified in refusing in time of danger to exe- 

cute an order involving unreserved exposure of life. See Commanding Officers, 38. 

67. Unlawful orders— The rule that " a command not lawful may be disobeyed no matter 

from what source it proceeds" is qualified by the fact that to justify disobeying an 
order as illegal the case must be an extreme one and the illegality not doubtful. Of 
this class would be an order not relating to military duty or usages, or having for 
its sole object the attainment of some private end. Accordingly held, that where 
a convening authority receives an order, from the senior officer present, to modify 
his action on a summary court-martial case, he was "advised that hi a case of this 
character involving a refined question of legal construction you should invariably 
give an order emanating from proper source the benefit of the doubt, and should 
obey it unhesitatingly, reserving to proper opportunity any question respecting 
its legality." File i.192-1, Sec. Navy, Mar. 21, 1905. See aho Reports on Fit- 
ness, 2. 

68. Violation of orders by deceased. See Line of Duty and Misconduct Construed, 

107-112. 



442 PARDONS. 

ORDINARY DISCHARGES. 

1. Convenience of enlisted men— When discharged at his own request and for his own 

convenience a man receives an "ordinary discharge." C. M. O. 20, 1915, 5. See 
also General Order No. 110, July 27, 1914, 18; Ordinary Discharges, 2. 

2. Definition— The following persons are entitled to an ordinary discharge only: 

(a) All who are not recommended by the commanding officer for fidelity, obedience, 
and ability during their term of service. 

(6) All who are discharged before the expiration of their term of enlistment at 
their own request or for their own convenience. C. M. O. 30, 1910, 10; 20, 1915, 5. 

3. Purchase— Discharge by— When discharged at his own request and for his own con- 

venience a man receives an "ordinary discharge." See Ordinary Discharges, 2. 

4. Request of enlisted men. See Ordinary Discharges, 2. 

ORDINARY SEAMAN. 

1. Officers— May be reduced to rate of. See Reduction in Rating, 24-27. 

ORDNANCE OFFICER. 

1. General court-martial — Tried bv— Neglecting to examine and have recoil cylinders 
filled. C. M. O. 43, 1895. 

OUTFITS, CLOTHING. 

1. Right to. See Clothing Outfits. 

OVER SLEPT. 

1. Excuse — When tried by general court-martial. CM. O. 51, 1910, 2. 

OVERSTAYING LEAVE. 

1. Ensign— Charged with. C. M. O. 67, 1904. 

2. Gunner- Charged with. G. C. M. Rec. 6362. 

PANAMA. 

1. G. 0. 121. See General Order No. 121, September 17, 1914, 17. 

2. Jurisdiction. See Jurisdiction, 65. 

PAPERS. 

1. "Aloud" — Papers read in court-martial proceedings. See Aloud. 

2. Useless papers— In office of Judge Advocate General destroyed. File 14287-20, J. A. G., 

Nov. 4, 1915; 4496-77, J. A. G., Sept. 26, 1907. 

PARDONS. 

1. Acceptance — Where a pardon is legally issued by the President it is the right of the 

person to whom the pardon is proffered to refuse it. (Burdick v. U. S., 235 U. S. 
267). See Pardons, 16; Self-Incriminatton, 13-14. 

2. Citizenship— Effect of pardon for "Desertion" upon rights of citizenship lost by 

conviction of "Desertion" prior to August 22, 1912. See Deserters, 17-20; De- 
sertion, 26, 29, 41. 

3. Commuting sentences of courts-martial— The President in the exercise of his 

power to pardon may in acting upon court-martial cases commute sentences. See 
Commuting Sentences, 4; Dismissal, 18. 

4. Conditional pardon— The power of the President to grant conditional pardons is 

unquestioned and is commonly exercised in practice. 

An enlisted man deserted from the Navy. The records did not show that he was 
tried by court-martial or punished in any way for his offense. A pardon was issued 
on the sole condition that he present himself for enlistment within 20 days from 
the date of the conditional pardon, and if accepted, enlist in the United States Navy. 
File 3000-98, Sec. Navy, May 12, 1898. 

5. Same— An officer of the Navy, sentenced to loss of numbers, has been pardoned on 

condition that he take rank in a specified place in his grade, below his original posi- 
tion. File 262S2-26, Sec. Navy, Mar. 2, 1909. 

A midshipman received a conditional pardon as follows: "I hereby pardon Mid- 
shipman * * *, upon condition that he take rank at the foot of his class, and, if 
commissioned, be commissioned as the last number therein." The accused "advised 
the department of his acceptance, under the condition stated, of the pardon of the 
President." C. M. O. 30, 1908, 2. See also C. M. O. 33, 1908, 2; File 26262-198. 

6. Constructive pardon— Promotion of an officer. See Pardons, 44. 

7. Same — Appointment of a convicted deserter, with knowledge he was such, as an officer. 

See Desertion, 41. 



PARDONS. 443 

8. Same— Restoration to duty. See Pardons, 47. 

9. Courts-martial have not power to pardon— The law has never intended to vest 

in courts-martial the power to pardon offenses or to award a nominal punishment 
equivalent to a pardon. The powtr to pardon, remit or mitigate is expressly vested 
in the President of the United States. The exercise of this power by a court- 
martial is therefore illegal. C. M. O. 89, 1897; 132, 1897, 2. See also Court, 132. 

10. Death— Pardon after death. See Pardons, 11, 12. 

11. Deceased— Where it was recommended that a pardon be issued to the legal representa- 

tives of the deceased, the department stated: "The case is not one in which the inci- 
dents and penalties attending desertion could be removed by the granting of a par- 
don." File 3846-98, Sec. Navy, June 10, 1898. See also Deserters, 20. 

12. Same — In view of the fact that a pardon is a personal deed, the validity of which de- 

pends upon its proper delivery to, and acceptance by, the person to whom it is granted, 
and as these essential features can not be complied with, in a case where the person 
in whose favor the pardon is requested, is dead, Held, that the department can not 
take favorable action and request that a pardon be issued. File 26539-491, Sec. Navy, 
Sept. 16, 1912. 

13. Declined. See Pardons, 1; Self-Incrimination, 13, 14. 

14. Definition. See Pardons, 19. 

15. Delegation of power to pardon. See Pardons, 41. 

16. Delivery and acceptance — A pardon does not become effective, for the purpose of 

depriving a witness of his right to refuse to answer criminating questions, until de- 
livery and acceptance. (Burdick v. U. S., 235 U. S. 267.) C. M. O. 53, 1914, 5. See 
also Pardons, 12; Self-incrimination, 13, 14. 

17. Department of Justice — Under an understanding between the Department of Justice 

and the Navy Department and "War Department, and also " under the rules relating 
to applications for pardon adopted by the Attorney General and approved by the 
President," the Department of Justice "will not consider applications for pardon for 
desertion or other offenses against the military and naval laws, and when such appli- 
cations are received they are referred to the Secretary of the Navy and the Secretary 
of War respectively." The Department of Justice "does, however, issue the formal 
warrants of pardon in Army and Navy cases where such pardon has been recom- 
mended by the Secretary of the Navy or the Secretary of War." See File 7466-04. 
See also Pardons, 43. 

18. "Desertion." See Deserters, 17-20; Desertion, 41; Pardons, 2, 11, 37, 40. 52, 54. 

19. Effect of— "A pardon is an act of grace by which an offender is released from the con- 

sequences of his offense, so far as such release is practicable and within control of the 
pardoning power, or of officers under its direction. It releases the offender from all 
disabilities imposed by the offense, and restores to him all his civil rights. Tn con- 
templation of law, it so far blots out the offense, that afterwards it can not be impuced 
to him to prevent the assertion of his legal rights. It gives to him a new credit and 
capacity, and rehabilitates him to that extent in his former position. But it does 
not make amends for the past. It affords no relief for what has been suffered by 
the offender in his person by imprisonment, forced labor, or otherwise; it does not 
give compensation for what has been done or suffered, nor does it impose upon the 
Government any obligation to give it. * * * Neither does the pardon affect any 
rights which have vested in others directly by the execution of the judgment for the 
offense, or which have been acquired by others whilst that judgment was in force." 
(Knote v. U. S., 95 U. S. 149, 153). File 26282-2. 

20. Same— Purges the offense but does not restore position. See Pardons, 45. 

21. Same — "A pardon reaches both the punishment prescribed for the offense and (lie guilt 

of the offender; and when the pardon is full, it releases the punishment and blots 
out of existence the guilt, so that in the eye of the law the offender is as innocent as 
if he had never committed the offense. Tf granted before conviction it prevents any 
of the penalties and disabilities consequent upon conviction from attaching; if granted 
after conviction, it removes the penalties and disabilities, and restores him to all his 
civil rights; it makes him, as it were, a new man, and gives him a new credit and 
capacitv." (Ex parte Garland, 71 U. S. 333, 380-381. See also V. 8. r. Padelford, 9 
Wall. 531, 537). File 5789-99, Sec. Navv, Sept. 2, ll>99. See also File 26282-2. But see 
In re Spencer, 22 Fed. Cas. No. 13234; 11 Op. Atty. Gen 22$; Roberts v. State. 160 X. 
Y. 217. 

Where certain steps had been taken in accordance with statute with a view to the 
dismissal of cadets from the Naval Academy, but the proceedings had not been com- 
pleted by the actual dismissal of the offenders, the President could, in the exercise of 



444 PARDONS. 

the pardoning power, relieve the offenders from the punishment of dismissal, leaving 
them in the Academy, their connection with which had not been severed. (Op. 
Atty. Gen., Aug. 14, 1888, Exec. Press Copy Book, Navy Dept. No. 7, p. 245.) But 
where a midshipman has been actually dismissed, a pardon will not have the effect 
of reinstatement. File 5252-73, J. A. G., Oct. 1, 1915. 

22. Same — "The effect of a pardon is to obliterate the offense, and make him who has been 

an offender, as innocent, in legal contemplation, as if he had never offended; to remove 
all disabilities incident to the offense charged and to restore to him all civil rights 
which he would have had if he had not offended." (Op. Atty. Gen., June 16, 1908.) 
File 26282-2. 

23. Same— A full pardon by the executive removes all penal consequences, except executed 

forfeitures, attached to the commission of an offense. File 26251-1963:1, J. A. G., 
Aug. 17, 1910, p. 2. 

24. Same — A pardon "can not and does not restore that which is already lost and gone 

beyond the reach of the Government. But as to the future, it relieves the person 
from all disabilities and consequences to which he would be subject but for the pardon, 
so that, thereafter, nothing can be imputed to him based upon the allegation of his 
offense." (Op. Atty. Gen., June 16, 1908.). File 26282-2. 

25. Same — "There has been some difference of opinion among the members of the court 

as to cases covered by the pardon of the President, but there has been none as to the 
effect and operation of a pardon in cases where it applies. All have agrepd that the 
pardon not merely releases the offender from the piinishment prescribed for the 
offense, but that it obliterates in legal contemplation the offense itself." (Carlisle 
v. U. S., 16 Wall. 147, 151.) File 26282-2. 

26. Embezzlement. See Pardons, 37. 

27. Form of pardon— May take form of a proclamation of amnesty or be individual in 

nature. The form which a pardon may assume is not at all important. See 
Desertion, 41. 

28. Formal warrants — Issued bv the Department of Justice. See Pardons, 17, 43. 

29. Fraudulent enlistment. See File 26251-8539:1, J. A. G., Jan. 21, 1914, Sec. Navy, 

Jan. 24, 1914, which holds restoration to duty of a person who fraudulently enlists 
(ratifving the fraudulent enlistment constructively) is not a constructive pardon. 
See also Fr.audulext Enlistment, 75; Pardons, 47. 

30. General pardon and amnesty. See Desertion, 41; Pardons, 27. 

31. Implicit pardon. See Pardons, 44. 

32. Mark of desertion. See Mark of Desertion, 4. 

33. Midshipman — "Where dismissal has not been consummated. See Midshipmen, 60; 

Pardons, 21. See Pardons, 5, where a midshipman received a constructive pardon. 

34. Same— Dismissed for hazing in 1906— Pardoned by President. File 26282-267. 

35. Numbers, loss of— Where an officer while in the grade of second lieutenant was sen- 

tenced to loss of numbers, was not pardoned, but subsequently promoted to grade of 
first lieutenant, Held, the sentence was completely executed, and there was no way, 
under existing law, in which he could be restored to the rank he held before he was 
sentenced. File 26261-246, Sec. Navy, Mar. 18, 1914; 26262-1794, Jan, 1917. 

36. Same — An officer in the grade of lieutenant was sentenced to a loss of 150 numbers in 

1908. Proceedings, findings, and sentence were approved. In 1909, while in the same 
grade, the President issued a "partial pardon" reducing the loss of numbers to 50. 
File 26282-26, Sec. Navy, Mar. 2, 1909. 

37. Offenses other than "Desertion" — A request was made that the President pardon a 

former enlisted man of the Navy who had been dishonorably discharged in accord- 
ance with the sentence of a general court-martial after trial on the charge of "scandal- 
ous conduct tending to the destruction of good morals," the specifications thereunder 
alleging that he had embezzled property and funds of the United States while a Navy 
mail clerk. 

The department has held that where a naval prisoner has been convicted and 
served sentence for an offense, it will not recommend that he be pardoned, except 
in such cases of desertion as result in loss of the rights of citizenship. 

In all cases of requests for pardon, in accordance with the rules adopted, no appli- 
cation for a pardon will be considered until at least two years have elapsed from the 
date of the release from confinement of the applicant. File 26282-245, Sec. Navy, 
Dec. 16, 1915; C. M. O. 49, 1915, 28. See also File 26282-214, Mar. 18, 1915; 1 Op. Atty. 
Gen. 359; 23 Op. Atty. Gen. 360. 

38. Officer appealed— For pardon and relief from effect of general court-martial sentence. 

File 4435-04, and 4445-04, J. A. G., May 19, 1904. 



PARDONS. 445 

39. "Partial pardon"— Reducing loss of numbers suffered by an officer by reason of a 

general court-martial sentence. See Pardons, 36. 

40. Same— Pardons to deserters remitting the disabilities resulting from conviction 

without pardoning the offense. File 26282; 28067. See also Deserters, 17-20; De- 
sertion, 41; Pardons, 2, 11, 37, 40, 52, 54. 

41. President of the United States— The pardoning power under the Constitution is 

vested exclusively in the President of the United States and can not be delegated. 
The Secretary of the Navy may remit or mitigate the sentence of a naval court- 
martial in whole or in part but he can not pardon the offense. File 26806-117, J. 
A. G., Apr. 21, 1914. See also File 26251-1963:1, J. A. G., Aug. 17, 1910; 26251-8539:1, 
J. A. G., Jan. l, 1914; Commuting Sentences, 1; Secretary of the Navy, 54. 

42. Prior to conviction — The Navy Department has adopted the rule formulated by 

the Department of Justice and approved by the President, of declining to recom- 
mend the issuance of a pardon in any case prior to conviction. File 26282-84, Mar. 
7, 1912. See also File 26262-1344: 5. But see File 26282-85, Apr. 8, 1912. 

43. Procedure — Where the Secretary of the Navy approves an application for pardon 

and transmits it to the President with favorable recommendation, if a pardon is to 
be granted, this letter is returned with the President's approval indorsed thereon; 
the papers are then transmitted to the Department of Justice, where the formal 
warrant of pardon is prepared for the President's signature; when signed by the 
President, the warrant of pardon is sent by the Department of Justice to the Navy 
Department, to be transmitted to the recipient, together with a blank form of receipt 
and acceptance to be signed by the recipient of the pardon and returned by him 
to the Navy Department for file. File 26282; 28067. See also Pardons, 17. 

44. Promotion of an officer — Is a constructive pardon of an unexecuted sentence, or 

where the officer is under arrest on charges, etc. But where steps have been taken 
with a view to the promotion of an officer, before the promotion is consummated 
he may be tried by court-martial for offenses previously committed. (G. C. M. 
Recs. 23553, 26451, 28681, 28798.) And where an officer was nominated and con- 
firmed for advancement in rank, after he had been recommended for trial by court- 
martial, but the commission was not signed by the President, the necessary steps 
for his trial were proceeded with until stayed by the acceptance of said officer's resig- 
nation "for the good of the service." File 26251-2833, Mar. 31, 1910. See also Com- 
missions, 21; 6 Op. Atty. Gen. 123; 8 Op. Atty. Gen. 237; Desertion, 41. See also 
4 Op. Atty. Gen. holding that the promotion of a passed midshipman is an im- 
plicit pardon of sentence of suspension on half pay. 

45. Purges offense— But does not restore position. See File 5789-99, J. A. G., Sept. 2, 

1899; 1768-D, 1902. See also 11 Op. Atty. Gen. 19. 

46. Refusal to accept. See Pardons, 1, 16; Self-Incrimination, 13, 14. 

47. Restoration to duty— Restoration of a court-martial prisoner to duty by the Sec- 

retary of the Navy is never a "pardon." Only the President can "pardon" an 
offense, and the department has heretofore decided that inasmuch as the Secretary 
of the Navy has no power to expressly pardon an offense, a fortiori, restoration of 
a man to duty could not possibly operate as a "constructive pardon." File 26251- 
6297:9, Sec. Navy, Dec. 28, 1914; C. M. O. 6, 1915, 15. See also File 26251-1963:1, Au?. 
17, 1910, p. 13, approved by Sec. Navy, Aug. 17, 1910; 9212-59, Sec. Navy, Aug. 26, 
1915; 26251-8539:1, J. A. G., Jan. 21, 1914; 26806-117, J. A. G., Apr. 21, 1914; U. S. v. 
Landers, 92 U. S. 77. 

48. Retroactive — "No pardon is retroactive, it can not alter or reverse the facts of a com- 

pleted record, nor can it act to restore an executed forfeiture." File 20251-1963:1, 
J. A. G., Aug. 17, 1910, p. 3. See also Pardons, 19-25. 

49. Revised Statutes 4756, 4757— The recipient of a pardon is entitled to the benefits 

of these sections in the same manner as if he had never been discharged for miscon- 
duct. File 5789-99, Sec. Navy, Sept. 2, 1899. 

50. "Rules Relating to Applications for Pardon"— Issued by the Department of 

Justice, dated July 1, 1904. See File 7466-04. 

51. Time — Two years must elapse from date of release from confinement before pardon 

will be considered. See Pardon, 37, 52. 

52. Two years— In cases of enlisted men convicted of "Desertion," the rule of the Depart- 

ment of Justice as approved by the President is followed by the Navy Depart moat 
of recommending that a pardon be issued for the purpose of rest or ins: citizenship 
rights, where the applicant had served sentence for the offense, and then onlv after 
two years from date of discharge and provided the applicant produces satisfactory 
affidavits to the effect that he has lived an upright and industrious life since the date 



446 PARDONS. 

of his discharge. File 26282-84, Sec. Navy, Mar. 27, 1912. See also C. M". O. 29, 
1914, 11; G. C. M. Ree. 24805; File 26262-1359, J. A. G., Mar. 1, 1912; 26282-241, 
Sec. Navy, Nov. 9, 1915; Deserters, 17-20; Pardons, 37. But see File 26282- 
157:1, Sec. Navy, May 25, 1914, where pardon was recommended within less than 
two years from date of discharge. 

53. Unconditional pardon. See Pardons, 19-25. 

54. War— Persons convicted of '-Desertion'' in time of war can not have their citizenship 

rights restored except by pardon. See Desertion, 29, 135. 

55. Warrants — Formal warrants for pardons are issued by the Department of Justice. 

See Pardons, 17, 43. 

56. When pardon may be granted— The President "has power to pardon for a crime 

of which the individual has not been convicted and which he does not admit." 
(U. S. v. Burdick, 211 Fed. Rep. 492.) C. M. O. 53, 1914, 5. 

PAROLE. 

1. Interned belligerents— Parole of. See Internment. 

2. Jurisdiction— Of naval authorities over men paroled by civil courts. See Jurisdiction. 

99,100. 

3. Policy of department— Tt is not the policy of the department to parole any person 

convicted by a naval general court-martial. File 26267-157, Sec. Navy, September, 
1916. 

4. Violator. See Civil Authorities, 8; Parole Violator, 1. 

"PAROLE VIOLATOR." 

1. Discharged — As undesirable and turned over to civil authorities. See Civil Au- 
thorities, 8. 

PASSED ASSISTANT ENGINEER. 

1. General court-martial— Tried by. C. M. O. 21, 1883; 22, 1883; 11, 1885. 

PASSENGERS. 

1. Boatswain — Passenger in a ship's boat tried by general court-martial for "Neglect of 

duty." File 26251-12847. 

2. Division commander— Responsibility of a division commander for the navigation of 

his flagship when he is a passenger. See Navigation, 31 (p. 413). 

PATENT LOG. See File 7893-03, J. A. G., Sept. 22, 1903; 13 J. A. G., 99. 

PATENTS. 

1. Laws relating to. See File 8247-293, J. A. G., March 14, 1916. 

2. Officers, enlisted men or employees — Of the Government securing patents. See 

File 4496-116. J. A. G., Mav 1, 1908. 

3. Securing of. See File 27219-322, J. A. G., June 17, 1916. 

PATIENTS AT THE GOVERNMENT HOSPITAL FOR THE INSANE. See Gov- 
ernment Hospital for the Insane. 

PATROL. 

1. Member of a patrol— Killed by member of another friendly patrol. See Line of 
Duty and Misconduct Construed, 86. 

PAWNED OR STOLEN GOODS. 

1. Recovery— Of pawned or stolen property of the United States. C. M. O. 30, 1916. See 
also Public Property, 7. 

PAT. See also Emolument; Salary. 

1. Absence, unauthorized— According to decisions of the Comptroller of the Treasury, 

enlisted men acquitted by court-martial of the charge of desertion, and thereby 
acquitted by implication of the lesser offense of absence without leave, are entitled 
to pay during the period of their alleged desertion. (10 Corap. Dec., 760; 16 Comp. 
Dec.,480, 107S.&A. Memo.,1325; 12 Comp. Dec., 328, 59 S. <5c A. Memo., 53; 15 Comp. 
Dec., 661.) C. M. O. 14, 1914, 4; 29. 1914, 10; 49, 1915, 8. See also Absence from 
Station and Duty Without Leave, 24; 11 Comp. Dec., 659, 755. 

2. Same — His acquittal upon a trial should be accepted by tbe Government as conclusive 

in his behalf that the civil proceedings against him were without legal justification. 



pay. 447 

"A soldier under arrest by the civil authority on a criminal charge will be entitled 
to his pay for the time he was in custody, provided he is tried and acquitted, or dis- 
charged without trial." (Dig. Dec, 2 Comp. Dec, par. 1311.) 

In 1896, in the case of a seaman charged with killing a man while on shore on liberty, 
the comptroller said (2 Comp. Dec, 535): 

"His pay should be held in abeyance, for if acquitted he will be entitled to it, while 
if convicted it will be forfeited from the date of his arrest." 

And decisions to a similar effect will be found in 9 Comp. Dec, 249; 14S. & A. Memo. 
129; 34 Id., 282. If, then, a discharge without trial, or an acquittal, by the civil 
authorities gives the accused man a right to his pay during the enforced absence, it 
can not be doubted that the absence should not be regarded as of such a character as 
to render the man liable to punishment therefor. 

As held by the second comptroller (Dig. 2d Comp., par. 1312): 

"When a soldier is convicted by the civil authority of a crime, and is thereby with- 
drawn from the service of the United States through his own fault, all pay, etc., due 
at the time of his conviction is forfeited." C. M. O. 5, 1912, 13-14. See also Criticism 
of Courts-martial, 19. 

3. Accounting officers— Jurisdiction over questions pertaining to pay. See File 

26254-599, Jan. 4, 1911. 

4. Acquittal— Pay for time under arrest. See Confinement, 7; Pay, 1, 2. 

5. Action withheld — Forfeiture of pay and deposits. See File 26516-17. 

6. Ad interim appointments. See Pay, 82. 

7 . Additional pay— For aids. See File 26254-292; 26254-1917, Sec. Navy, Nov. 4, 1915; 

26254-53; 26254-2014, J. A. G., May 8, 1916. 

8. Same— Aids to brigade commander, U. S. M. C. See File 26254-685:1. 

9. Advances to officers. See C. M. O. 4, 1916; R-4458; Advances or Loans by Pay- 

masters; Fraud, 5. 

10. Aids. See Pay, 6, 7. 

11. Allowances — And pay distinguished. See Allowances, 13. 

12. Arrest and acquittal by civil authorities— No bar to receipt of pay. See Confine- 

ment, 7; Pay, 2. 

13. Attorney General— Jurisdiction regarding questions concerning pay. See Attorney 

General, 12. 

14. Awaiting orders pay. See Pay, 61. 

15. Awaiting trial— It has been brought to the department's attention that in several 

cases commanding officers, in pursuance of Navy Regulations, 1913, R-3669 (3), have 
issued special money requisitions to enlisted men against whom charges have been 
preferred; also that prompt notification has not been given to pay officers of amounts 
to be deducted pursuant to the sentences of courts-martial in certain cases of enlisted 
men in order that proper deductions might be made in lieu of such men being allowed 
to draw their money. 

Loss has resulted to the Government by virtue of the above, for cases of late have 
gone to the Comptroller of the Treasury on appeal by pay officers from auditor's 
disallowance and have been allowed by reason of lack of notice to said pay officers. 
(See Comp. Dec. of Feb. 24, 1916.) Commanding officers should make every effort 
to safeguard the Government from any further losses from similar causes. File 
26806-131:35, J. A. G., Mar. 22, 1916; C. M. O. 9, 1916, 10. 

16. Bail— Pay of enlisted men on bail from civil courts. See Bail, 2. 

17. Checkage of pay for value of property lost— In an opinion of the Judse Advocate 

General rendered December 8, 1909 (File 3980-452:2), it was concluded that, in the 
absence of statutory authority, there is no warrant of law for checking the pay of 
an officer or man for loss or damage to Government property, notwithstanding a 
contrary decision rendered by the Comptroller of the Treasury Februarv 9, 1009 (96 
S.& A. Memo., 957). Pursuant to said opinion of this office, article 1260 (5), C. N. R. 4, 
June 25, 1909, was revoked by the President upon recommendation of the Secretary 
of the Navy. (See S. & A. , Ind. , May 10, 1916, No. 1S6-362; 26*34-594.) 

Accordingly, advised: That there is ho authorit y of law under which an officer of the 
Navy, who is not required to render returns for property in his possession, rati be 
checked for the value of missing property. In this connection attent ton is invited to 
the fact that there is no legal obstacle in the way of such oihcer's depositing to the 
credit of the United States, if he is willing to* do so, a sum sufficient to cover 
the cost of missing property for which he has been held responsible. (File 26834-594; 
S. & A. File 186-364.) File 18140-35, J. A. G., July 25, 1016. 

50756°— 17 29 



448 pay. 

18. Same— There is no authority of law to check the pay of an officer or enlisted man for 

the loss of a library book. File 2657-04, J. A. G., April 5, 1904, referred to in File 
3980-452:2, J. A. G., Dec. 8, 1909. p. 9. 

Or for loss or damage to public property. 14 J. A. G., 230. 

Or for a boat taken without permission and lost. File 170-04, J. A. G., Jan. 21, 1904. 

Or for careless enlistments by recruiting officers of the Navy. File 5942-34. 

Or for windows broken through carelessness. File 18140-16, Sec. Navy, Feb. 27, 
1912. 

Checkage of pay in lieu of punishment— Held: That the practice of having enlisted 
men attached to a receiving ship, checked for the loss or destruction of Government 
property upon their request in lieu of being punished for the offense involved therein, 
is wholly unauthorized by law. File 3773-149 J. A. G. , Dec. 26, 1912. 

19. Checkage of pay made erroneously. See Auditor for the Navy Department, G. 

20. Civil employees— Procedure when civil employees are not paid from the pay car at 

the regular time. File 26283-961, Sec. Navy, Dec. 21, 1915. 

21. Same— Suspension without pay by the Secretary of the Navy. File 262S3-961, Sec. 

Navy, Dec. 21, 1915. 

22. Same— Leave of absence without pay. See Leave of Absence, 13. 

23. Clemency— The department has held, in considering a question of remitting the loss of 

pay imposed by a court-martial, that it should be done, in general, only as an act of 
clemency. (File 26237-560, Sec. Navy, Aug. 3, 1910.) File 26251-7004:2, Sec. Navv, 
Mar. 31, 1913; C. M. 0. 22, 1915, 9. 

Loss of pay of an accused is frequently remitted by the Secretary of the Navy on 
condition that the accused allot all pay except necessary prison expenses, transpor- 
tation, and gratuity to be paid on discharge. See Allotments, 6, 7; Clemency, 39, 53. 

24. Commences— A commission bears date, and the salary of an officer commences from 

his appointment, not. from the transmission or acceptance of his commission. (Mar- 
bury v. Madison, 1 Cr., 137.) File 22724-16:1, J. A. G., Apr. 24, 1911, p. 9. 

25. Same — More recently it was enacted that officers of the Navy advanced in grade or 

rank pursuant to law should be paid "from the date stated in their cornmissions.'' 
(Act of Mar. 4, 1913, 37 Stat. , 892.) File 5460-76, J. A. G., July 12, 1915. 

26. Conditionally remitted. G. C. M. Rec. 28810; File 26287-251:69, Feb. 12, 1914. 

27. Confinement— Forfeiture of pay in general courts-martial cases should agree with the 

period of confinement. See Confinement, 32. 

28. Confinement at hard labor— The sentence should include forfeiture of pay— In view 

of the fact that a prisoner does not perform the duties of his rank or rating, but, on the 
contrary, is a source of expense to the Government, it is considered that the best 
interests of the Government would be served if the court would adhere to the usual 
form of punishment for enlisted men, which includes forfeiture of pay during con- 
finement at hard labor. C. M. O. 1, 1913, 3; 5, 1914, 6. See also C. M. O. 100, 1894, 2; 
Confinement, 27; Navy Regulations, 1913, R-816. 

29. Confinement without discharge — A court should never adjudge a sentence, not 

including dishonorable discharge, in which there is no limitation upon the period 
during which the loss of pay (and allowances) should continue as it therefore is made 
applicable to the entire remaining portion of the enlistment of the accused. C. M. O. 
42, 1909, 3; 14, 1910, 7; 26, 1910, 8; 21, 1912, 4; 1, 1913, 3; 14, 1913, 5. 

30. Continuous service pay. See File 28550-20. 

31. "Creditable records" — Commissioned warrant officers. See Pay, 114. 

32. Date— Pay of an officer commences. See Pay, 24, 25. 

33. De facto officers— "The invariable rule has been to hold that one who performed 

the duties of an office or employment is entitled to retain compensation therefor, 
notwithstanding the fact that the original appointment was illegal." File 26254- 
1451:11, J. A. G., Apr. 12, 1915, p. 14. See also Pay, 82. 

34. Same—" It is well settled that where an officer defac to has rendered service and received 

pay In good faith, the money paid to him can not be recovered back. (Palen v. U. S., 
19 Ct. Cls., 389; Badeau v.'V. S., 130 U. S. 452.)" Comp. Dec., Nov. 25, 1910, file 
26254-578. 

35. Debts— Collection of by department from pay. See Debts, 1, 13, 15, 17, 18; Pay, 71. 

36. Deck court sentences— In no case shall a deck court adjudge forfeiture of pay for a 

longer period than twenty days. C. M. O. 24, 1909, 3; 34, 1913, 6; 1, 1914, 5. 

37. Same — Deck courts and summary courts-martial are authorized bv section 8 of the 

act of February 16. 1909 (35 Stat., 621) to award loss of pay by itself without con- 
finement. See Deck Courts, 36. 



pay. 449 

38. Same — Amount of pay forfeited and not period of time should be stated in sentences. 

See Deck Courts, 35. 

39. Definition— "Pay" or "pension," compensation of retired officers. See Retired 

Officers, 16. 

40. Same — "Allowances" and "pay" distinguished. See Allowances, 13. 

41. Desertion — The offense of "Desertion" per se entails loss of all pay at the time of 

desertion. See Deserters, 12; Desertion, 96. 

42. Discharge — Operates as a remission of unexecuted pay adjudged forfeited by courts- 

martial. See Bad-Conduct Discharge. 3; Pay, 87. 

43. Erroneously checked. See Auditor for the Navy Department, 6. 

44. Disease—" Where the disease was contracted by a soldier during the enlistment in 

which he is serving, but prior to the passage of the act of August 24, 1912 [37 Stat. , 572], 
pay for absence on account of such disease should not be deducted." (19 Comp. 
Dec. 572, quoted and followed in File 7657-394, Sec. Navy). File 7657-394:1, Sec. 
Navy, Sept. 20, 1916. 

45. Same— The act of August 29, 1916, provides: "Hereafter no officer or enlisted man in 

the Navy or Marine Corps in active service who shall be absent from duty on account 
of sickness or disease resulting from his own intemperate use of drugs or alcoholic 
liquors, or other misconduct, shall receive pay for the period of such absence, the time 
so absent and the cause thereof to be ascertained under such procedure and regulations 
as may be prescribed by the Secretary of the Navy: Provided, That an enlistment 
shall not be regarded as complete until the enlisted man shall have made good any 
time in excess of one day lost on account of sickness or disease resulting from his own 
intemperate use of drugs or alcoholic liquors, or other misconduct." Held: [1] That 
where such disease has been contracted prior to August 29, 1916, pay shall not be 
deducted for absence on account of such disease. {See 19 Comp. Dec., 4S3.) File 
7657-394 Sec. Navy, Sept. 11, 1916; C. M. O. 33, 1916. [2] That enlisted men shall be 
required to "make good" any time lost during current enlistment in excess of one day 
on account of sickness or disease resulting from their own intemperate use of drugs 
or alcoholic liquors, or other misconduct, only where such sickness or disease was 
contracted on or subsequent to August 29, 1916. (See 19 Comp. Dec., 583.) File 
7657-394:1, Sec. Navy, Sept. 20, 1916; C. M. O. 33, 1916. See also File 7657-399:4, Sec. 
Navy, Oct. 12, 1916; 7657-394:10, Sec. Navy, Oct. 21. 1916; 20 Comp. Dec., 349, 22025- 
121:2, J. A. G., Nov. 7, 1916; 7657-394:21, J. A. G., Jan., 1917; C. M. O. 3, 1917, 6. 

46. Same— The act of April 27, 1914 (38 Stat. 353) provides: "That hereafter no officer or 

enlisted man in active service who shall be absent from duty on account of disease 
resulting from his own intemperate use of drugs or alcoholic liquors or other mis- 
conduct shall receive pay for the period of such absence, the time so absent and the 
cause thereof to be ascertained under such proceedure and regulations as may be 
prescribed by the Secretary of War." (See G. O. 100, June 15, 1914.) See General 
Order No. 100, June 15, 1914. 

47. Fixed by statute — The pay of officers and enlisted men of the Navy is fixed by law, 

and being thus fixed it is not the subject of contract, which might be varied by the 
terms of such agreement. 14 J. A. G. , 233; File 3930-452:2, J. A. G. , Dec. 8, 1909, p. 4. 

48. Same— Since the law fixes the salary, the inciunbent of an office is entitled to the salary 

attached thereto, and neither the appointing power nor disbursing officers have con- 
trol, beyond the limits of the statute, over the compensation. See "Office," 17, 18. 

49. Fleet Naval Reserve. See File 2 -'550-20. 

50. Four months' gratuity. See File 28550-20. 

51. Fraudulent enlistment— Proof of receipt of pay or an allowance. See Fraudulent 

Enlistment. 

52. Same — Liability of disbursing officers for amounts paid as pay to enlisted men serving 

under a fraudulent enlistment. See Fraudulent Enlistment, 32. 

53. General Order No. 100. See General Order No. 100, June 15, 1914; Pay, 46. 

54. Hard labor. See Confinement, 27; Pay, 28. 

55. 1-4893. See Naval Instructions, 1913, 1-4893. 

58. Decrease of pay of enlisted men— Can not be increased without an act of Congress. 
File 7657-393, J. A. G., Sept. 23, 1916. 

57. Increase of pay of commissioned warrant officers Under (lie provisions of the 

act of August 29, 1916. See Pay, 114. 

58. Insane — Receipt of pay by an enlisted man who is a patient in the Mendocino State 

Hospital for the Insane. File 8523-406:1, J. A. C, June 24, 1916; 8528-406, J. A. G., 
May 6, 1914. See also File 8528-410. 



450 pay. 

59. Same — Patients and prisoners in the Government Hospital for the Insane. See 

Government Hospital for the Insane, 1-5. 

60. Leave of absence without pay. See Leave of Absence, 12-13. 

61. Leave or waiting orders pay— Navy Regulations, 1913, R-4406 (11), R-4410 (2), provide 

that warrant officers "when on leave or waiting orders shall receive the leave or 
waiting orders pay fixed by section 1556, R. S.," as amended by the act of May 13, 
1908. (35 Stat. 127.) [See also act June 24, 1910, 36 Stat. 605.] In view of the above 
where a warrant officer was absent on leave of eight days, the department held that 
he should receive leave or waiting orders pay as provided by the Navy Regulations. 
File 17789-24, Sec. Navy, July 19, 1915; C. M. O. 27, 1915, 8. 

62. Longevity. See Constructive Service, 1; Longevity, 1-3. 

63. Marines— Marines not sentenced to dishonorable discharge should be sentenced to 

forfeiture of pay only (not allowances), during confinement. C. M. O. 42, 1909, 3; 14, 
1910, 7; 15, 1910, 6; 17, 1910, 5; 14, 1913, 3. 

64. Marine officers— Section 1612 Revised Statutes is express that "the officers of the 

Marine Corps shall be entitled to receive the same pay and allowances * * * as 
are or may be provided by or in pursuance of law for the officers * * * of like 
grades in the infantry of the Army. 

Thus, although officers of the Marine Corps serve side by side with officers of the 
Navy, and although in both cases they are governed by the same laws and regulations 
and are ordered to duty by the same authority, nevertheless they receive pay under 
two different laws, the Marine Corps being in all cases paid in accordance with laws 
. relating to the Army, while the "Navy proper is paid under specific laws relat- 
ing to it. It has frequently happened that the two rates of pay differ for preciselv 
the same duty. For example, officers of the Navy since 1908 have received additional 
pay for sea duty, while until recently no such additional pay was allowed officers 
of the Marine Corps although serving on board the same vessels as the officers of the 
Navy. Marine officers "wherever serving" are entitled to be paid according to the 
laws governing the pay of the Army, as those laws are or may become. (Reid i. 
U. S., 18 Ct. Cls. 638.) File 26280-61, Sec. Navy, July 10, 1915. 

65. Midshipmen— Suspension without pay. See Midshipmen, 62. 

66. Minors— Reenlistment. See Pay, 86. 

67. Mounted— Marine officer on duty in the Office of the Judge Advocate General is not 

entitled to mounted pay. File 26254-305. See also Allowances, 12. 
58. Naval Instructions, 1913, 1-4893. See Naval Instructions, 1913, 1-4893. 
i69. Naval Militia— Retired officer of the Regular Navy holding a commission in the Naval 

Militia. See Naval Militia, 24; Pay, 94. 

70. Same — Pay of Naval Militia in joint maneuvers with the Regular Navy. See Naval 

Militia, 25. 

71. Officers— The Navy Department has not such control over the pay of an officer that 

it can compel him to pay private debts, nor does it act as an agency for their collection. 
An office can be proceeded against in the civil courts for private debts, if it is desired, 
in the same manner as civilians, but creditors must not expect the Navy Department 
to assist them in collecting debts. (Routine letter of Bureau of Navigation in private 
debt cases.) See Debts, 1, 13-18. 

72. Same— Pay forfeited by court-martial sentence. See Pay, 100-105. 

73. Same— Pending trial by general court-martial. See File 4657-98. See also Pay, 15. 

74. Same— Can not be deprived of, etc. See Pay, 47, 48, 71, 75, 76; Retired Officers, 18. 

75. Same— After an officer actually receives pay legally due him under a commission, such 

money becomes his personal propertv, and the Government retains no interest or 
claim therein. File 13673-1442:1, J. A.*G., Jan. 13, 1912. Seealso Leave of Absence, 
12, 13; Pay, 74, 76, 115, 116. 

76. Same—" With some exceptions, Congress may at any time make alterations of the sala- 

ries of public officers, to take effect from the passage of the act. The only contract 
which arises upon a statute establishing a salary is to pay the incumbent of the office 
that salary while the law remains in force and unchanged.'' (Fisher v. U. S., 16 
Ct. Cls., 323, 329.) File 3980-452:2, J. A. G.,Dec. 8, 1909, p. 6. See also "Office," 2: 
"A salary that is established by statute can not be increased or diminished by 
executive officers. It is not a subject of contract between such officers. The incum- 
bent of an office is entitled to the salary attached thereto by law, and if he receives 
a less sum from the disbursing officers he can claim and receive the balance." 
(Dyer v. U. S., 20 Ct. Cls. 166, 171.) File 39S0-452:2, J. A. G., Dec. 8, 1909, p. 6. 



PAY. 451 

"The law creates the office, prescribes its duties, and fixes the compensation. 

* * * The appointing power has no control, beyond the limits of the statute, over 
the compensation, either to increase or diminish it. This has been substantially de- 
cided in many cases. * * * If the appointing officer has no power to change the 
compensation of an inspector, certainly the paying officer has not." (Adams v.V.S., 
20 Ct. Cls. 115, 117, 118.) File 3980-452:2, J. A. G., Dec. 8, 1909, p. 6. 

" It is clear that when the statute gives a right to compensation in a given case 

* * * accounting officers can not dispense with the statute or make stipulations 
for allowing more or less than it gives. (1st Comp. Dec, v. 5, 501.)" File 3980-452:2, 
J. A. G. . Dec. 8, 1909, p. 7. 

"As the department appointed him to perform a duty required by law, for which 
the compensation was fixed by law, and the money appropriated to pay it, he is 
entitled to the compensation given by law, if he has performed the duty, for the 
Secretary has no more discretionary power to withhold what the law gives than he 
has to give what the law does not authorize." (Converse v. U. S., 21 How., 474.) 
File 3980-452:2, J. A. G., Dec. 8, 1909, p. 7. 

"The right to compensation being, therefore, created by law, and not being a sub- 
ject of contract, nothing can be assumed to modify that right, such as the regulations 
of an executive department, except such as are in conformity with the provisions of a 
statute existing or made in accordance with a later statute." File 3980-452:2, J. A. G., 
Dec. 8, 1909, p. 6. 

77. Pay-account status of an accused— The pay-account status of an accused is in- 

corporated in the instructions governing summary courts-martial merely as an aid 
in preventing an excessive or illegal sentence involving pay. See Accused, 54. 

78. "Pay miscellaneous." See Detentioners, 2. 

79. Prisoners. File 6628-00. See also Pay, 15, 28; Detentioners. 

80. Rate of pay— Should be included in records of deck courts and summary courts- 

martial. C. M. 0. 12, 1915, 7. See also Accused, 54. 

81. Rear admirals. See Rear Admirals, 2-6. 

82. Recess appointments— " No money shall be paid from the Treasury, as salary, to 

any person appointed during the recess of the Senate, to fill a vacancy'in any existing 
office, if the vacancy existed while the Senate was in session and was by law required 
to be filled by and with the advice and consent of the Senate, until such appointee 
has been confirmed by the Senate." (R. S. 1761.) (See 26 Op. Atty. Gen. 234 con- 
struing R. S. 1761. See also 21 Comp. Dec. 722; 21 Comp. Dec. 726)/ File 26521-152, 
J. A. G., Sept. 22, 1916. 

83. Reduction in rating— Forfeiture of pay by sentence of court-martial is based on pay 

of rating to which accused has been reduced. See Reduction in Rating, 30. 

84. Same— Article 32 of the Articles for the Government of the Navy is so construed that 

sentences by summary courts-martial which involve loss of pay are deemed to be 
such as deprive the offender of pay in stated terms of amount; and that "disrating" 
alone is not, within the meaning of the law, to be regarded as involving loss of pay, 
but as a reduction of rating only. U. S. Navy Reg. Cir. No. 19, June 4. 1879. 

85. Reduction of period of confinement by convening authority— The convening 

authority should also make a corresponding reduction in the forfeiture of pay and 
allowances. See Confinement, 34. 

86. Reenlistment of minors— A person who enlists in the Navy for minority, is honorably 

discharged within three months before the expiration of his enlistment and teenlists 
for four years, within four months thereafter, is, and is entitled to all the benefits . 
accruing to, an "enlisted man." (20 Comp. Dec., 409). File 7657-300, Sec. Navy, 
Aug. 11, 1915; C. M. O. 29, 1915, 8. 

87. Remitted by discharge — Where the bad-conduct discharge is executed before sufficient 

pay has accumulated under the provisions of I-4S93 to execute the total loss of pay to 
which an accused was sentenced, the execution of the bad-conduct discharge operates 
itself as a remission of the balance. (158 S. & A. Memo. 3035; File 26806-131:12.) 
C. M. O. 53, 1914, 7; 22, 1915, 5. Scealso Bad Conduct Discharge, 3. 

88. Retained beyond enlistment— Enlisted persons in the Marine Corps are entitled 

to an increase of one-fourth their former pay while detained beyond their terms of 
enlistment, but this is not to be computed upon the 20 per cent increase for service 
in time of war, as provided by the act of April 26, 1898 (30 Stat. 364), to enlisted men 
of the Army. 5 Comp. Dec. 524. 
S9. Retainer pay— Increase of 25 per cent in pay for enrolling in the Fleet Naval Reserve. 
See File 28550-20. 



452 pay. 

90. Retired officers detailed on active duty— The act of August 29, 1916, provides: 

''Hereafter any retired officer of the naval service who shall be detailed on active 
duty shall, while so serving, receive the active duty pay and allowances of the grade, 
not above that of lieutenant commander in the Navy or of major in the Marine Corps, 
that he would have attained in due course of promotion if he had remained on the 
active list for a period beyond the date of his retirement equal to the total amount 
of time during which he has been detailed on active duty since his retirement." 
Held: That, provided a retired officer meets the other requirements of the law above- 
quoted, that said law operates ex proprio vigore to confer upon such officer the benefits 
mentioned, and it is accordingly decided that the issuance of "new orders to active 
duty" is not necessary to accomplish the purpose of the law. (See 20 Op. Attv. 
Gen., 687.) File 27231-77, Sec. Navy, Sept. 19, 1916; C. M. O. 33, 1916. 

91. Same — Retired Marine officer ordered to active duty by the Secretary of the Navy 

under the provisions of the act of August 22, 1912 (37 Stat. 329). See Mareste Corps. 
91; Retired Officers, 1. 

92. Retired officers employed in civil offices or positions. See Retired Officers. 

93. Retired officers admitted to naval home. See Naval Home, 1. 

94. Retired officers when holding a commission in the Naval Militia. File 26254- 

207, Aug., 1916. See also Retired Officers, 54-58. 

95. Retired officers pay— Whether considered as "pay" or "pension." See Retired 

Officers, 16. 

96. Sea pay for Marine officers. See Pay, 64. 

97. Sentences of deck courts. See Deck Courts, 35-41, 51-56. 

98. Sentences of enlisted men — General courts-martial— A court is not authorized to 

adjudge a sentence, not including discharge, in which there is no limitation upon 
the period during which the loss of pay (and allowances in the cases of marines) should 
continue, as the forfeiture is thereby made applicable to the entire remaining portion 
of the enlistment of the accused. (C. M.O. 42, 1909, 3; 14, 1910, 7; 26, 1910, 8; 21, 1912. 4: 
1, 1913, 3; 14, 1913, 5; Comp. Dec. Nov. 21, 1914, App. No. 24095, File 26254-1658:1). 
C. M. O. 49, 1914, 7. 

99. Same — "In the case of enlisted men, loss of pay and allowances due and that may 

become due during the current enlistment of the accused, is added to the limit of 
punishment prescribed by the President." The foregoing provision was added to 
the limitation of punishment for general courts-martial by C. N. R. 5, October 4, 
1916, as a substitute for paragraph 4. 

100. Sentences of officers— A Marine officer was sentenced to lose seventy-five dollars 

($75) of his pay per month for a period of six (6) months, total loss of pay amounting 
to four hundred and fifty dollars ($450). In reviewing the case the Secretary of the 
Navy remarked in part as follows: 

The department considers that a sentence involving loss of numbers is a more 
appropriate form of punishment than forfeiture of pay for commissioned officers 
(other than cammissioned warrant officers). (See C. M. O. 105, 1905, p. 1.) 

While the department is on record as favoring loss of pay, rather than loss of num- 
bers, in the case of commissioned warrant officers, it is because loss of pay is the only 
substantial punishment, less than dismissal, that can be adjudged in their cases. 
(Forms of Procedure, 1910, p. 42; Index-Digest, 1914, p. 39; C. M. O. 37, 1914; 52, 1914.) 

Therefore, while the sentence adjudged and approved by the convening authority 
in this case is thoroughly legal, it is not in accord with the policy of the department 
which, as stated above, does not favor a sentence involving solely loss of pay in the 
case of commissioned officers of the naval sen-ice on the active list, other than com- 
missioned warrant officers. C. M. O. 48, 1915, 5. 

101. Same— A Naval Constructor was sentenced inter alia "to lose pay amounting to one 

hundred and fifty dollars ($150) per month for six (6) months." *C. M. -O. 40, 1913. 

102. Same— Officers have been sentenced by general courts-martial to forfeit pay. See 

G. O. 52, April 15, 1865; C. M. O. 37, 1886. 2. 

103. Same— In a case where an officer was sentenced "to have the sum of ten (10) dollars 

checked monthly against his pay. which said sums are to be paid to his creditor," 
the department stated in part: "'Pay forfeited by sentence of courts-martial accrues 
to the United States for the maintenance of Navy Hospitals, and such forfeitures 
can not be diverted to the benefit of an individual,' however justly the amount may 
be due him." C. M. O. 36, 1881, 3. 

104. Same — Where a loss of pay was adjudged by a general court-martial in these words, 

"to lose fifty dollars (S50)*per month for six (6) months," the department remarked: 
"The court in adjudging that part of the sentence relative to loss of pay apparently 



pay. 453 

intended that the loss of $50 per month be from the pay of the accused. Tt is not posi- 
tively so stated and, therefore, in order that there may be no ambiguity as to the inter- 
pretation of the sentence, the record is returned for the purpose of reconsidering " 
tne sentence. The court, in revision, revoked the first and'aajudged a new sentence 
which set forth that the accused would "lose fifty dollars ($50) per month of his pay," 
etc. C. M. 0. 11, 1915. 

105. Same— Sentences which include forfeiture of pay shall, in the case of officers, state 

the rate of pay and time of such forfeiture. Those including suspension must state 
distinctly whether from rank or from duty only. (R-816(l).) 

106. Sentences of paymasters' clerks— "To lose one-half (J) of sea pay for six (6) 

months, amounting to four hundred and six dollars and twenty-five cents ($406.25). 
C. M. O. 37, 1912. 

"To lose one-half (§) of shore-duty pay for five (5) months, amounting to four 
hundred and sixteen dollars and sixty-seven cents ($416.67)." C. M. O. 30, 1911, 2. 

107. Sentences of summary courts-martial. See Summary Courts-Martial. 

108. Sentences of warrant officers— "To lose one-fourth Q) of his sea pay for a period 

of one (1) year." C. M. O. 24, 1913. 

"To be placed on leave pay for six (6) months." This part of the sentence was 
remitted by the department. C. M. O. 18, 1912, 2. 

"To lose pay amounting to fifty dollars ($50) per month for a period of six (6) 
months." C. M. O. 22, 1914. 

"To be suspended from duty for a period of six (6) months on one-half (h) of shore- 
duty pay." C. M. O. 31, 1912. 

"To be suspended from duty for a period of one (1) year on one-half (§) shore duty 
pay." Reduced to six months. C. M. O. 32, 1912. 

Sentences involving suspension from duty are not favored by the department. 
See Suspension from Duty. 

109. Same — An acting boatswain was tried by general court-martial convened by the 

Commander-in-Chief of the Philippine Squadron and sentenced among other things 
"to lose one-third (|) of all pay and allowances that may become due him for a period 
of one (1) year." The convening authority in acting on the case stated in part: 
"That part of the sentence which relates to loss of pay and allowances, is disapproved 
for the reason that the convening authority deems that full pay is necessary for the 

g roper maintenance of the accused while on active duty." C. M. O. 105, 1905, 1. 
ee also File 10988-02; 3852-02; Comp. Dec. Apr. 22, 1902. 

110. Sentences of warrant officers (commissioned)— "To lose one-half (t) of sea-duty 

pay for a period of one (1) year." C. M. O. 11, 1913. 

"To lose seventy-five dollars ($75) per month of his pay for a period of six (6) 
months." C. M. O. 16, 1914. 

"To lose fifty dollars ($50) per month of his pay for a period of ten (10) months." 
C. M. O. 21, 1914. 

"To lose one-fourth (|) of his pay for aperiodofsix (6) months." CM. 0. 12, 1914. 

"To be suspended from duty for a period of six (6) months on one-half (§) of shore- 
duty pay." C. M. O. 21, 1910, 17; 1, 1911, 3. 

"To forfeit one-half (*) the pay that may become due him during such period of 
restriction." C. M. O. 1, 1911, 3. 

"To be suspended from duty for a period of six (6) months on three-quarters (■') 
of shore duty pay." C. M. . 25, 1913. 

Sentences involving suspension from duty are not looked upon with favor by the 
department. See Suspension from Duty. 

111. Waiting orders pay. See Pay, 61. 

112. Waiver of— As the department has no lawful power to fix a rate of pay differing from 

that which is prescribed by law in any given case or under any given' circumstances, 
it would be without effect to grant a leave of absence on condition that it be without 
pay; even if an officer should request leave of absence without pay, still such a case 
would be within the rule as laid down in Rush v. U. S. (35 Ct. Cls. 223) and Laurey 
v. U. S. (32 Ct. Cls. 259) whereit was held that although the parties waived their right 
to receive certain pay which the law gave to them, yet such a waiver, although nol 
a forced one, did not operate to deprive them of the right to pay which was prescribed 
by statute, and that they could recover. As a corollary io this, it is also true thai 
although an officer should agree to accept, or even request . a leave of absence without 
pay, still he would be entitled to recover his salary notwithstanding; this on the 
authority of Glavev v. U. S. (182 U. S. 595). File 13673-1442, .1 . A. G . .Nov. 22, 191 1 . 
pp. 16, 17. See also "Office," 17, IS; Retired Officers, IS citing V. S. r. An- 
drews (240 U. S. 90). 



454 pay. 

113. Warrant officers' and commissioned warrant officers' sentences. See Pay, 

108-110. 

114. Warrant officers (commissioned)— "Creditable records," within the meaning of 

the act of August 29, 1916— The act of August 29, 1916 (39 Stat. 578), provides as fol- 
lows: " Hereafter chief boatswains, chief gunners, chief machinists, chief carpenters, 
chief sailmakers, chief pharmacists and chief pay clerks, on the active list with 
creditable records, shall, after six years from date of commission, receive the pay and 
allowances that are now or may hereafter be allowed a lieutenant (junior grade), 
United States Navy: Provided, That chief boatswains, chief gunners, chief ma- 
chinists, chief carpenters, chief sailmakers, chief pharmacists, and chief pay clerks, 
on the active list with creditable records, shall, after twelve years from date of 
commission, receive the pay and allowances that are now or may hereafter be allowed 
a lieutenant, United States Navy." 

"Creditable records," within the meaning of the foregoing, does not import dis- 
tinguished records, but requires only that a record be such that upon examination 
for promotion it would be found satisfactory. In passing upon the creditability of 
an officer's record in these cases, consideration should be given to all matters therein 
disclosed, whether pertaining to his mental, moral, or professional qualifications, 
and it is necessary that an officer be satisfactory in all these respects if his record is 
to be deemed creditable. Further, in determining whether the record of a commis- 
sioned warrant officer is creditable, the investigation should ordinarily be limited 
to a scrutiny of his record in his present grade, and his prior record in the service should 
not be taken into consideration except in the cases where under existing law this 
would be done in determining his fitness for promotion. And, when a commissioned 
warrant officer has the necessary length of service, and it has been decided by the 
department that his record is creditable, this definitely fixes the rate of pay and allow- 
ances to which he is entitled under the above-quoted statute, and, in the event of his 
record ceasing to be creditable, the same can not be affected except by means of dis- 
ciplinary action as in the case of all officers. File 177o9-27, J. A. G., Sept. 21, 1916; 
C. M. O. 33, 1916, 6. 

115. Witnholding pay— The department can not withhold the compensation, in whole 

or in part, to which an officer is by law entitled. 16, J. A. G., 85. See also Pay, 71, 
75, 76, 112; Retired Officers, 18 citing U. S. v. Andrews (240 U. S. 90.) 

116. Same— The department can not enforce a regulation providing for the deprivation 

or a reduction of the pay of an officer, unless there is some plain statutory authority 
therefor. 15, J. A. G., 362, 

PAY CLERKS AND CHIEF PAY CLERKS. 

1. Appointment of under act, March 3, 1915 (38 Stat. 942)— Under the act of March 

3, 1915 (38 Stat., 942) all appointments as chief pay clerk must be made from the 
grade of pay clerk, all appointments as pay clerk must be made from the grade of 
acting pay clerk, and all appointments as acting pay clerk must be made from the 
enlisted men of the Navy having the required service. However, certain exceptions 
are made in that law, as follows (a) paymasters' clerks who were in the service on 
March 3, 1915, who are eligible for appointment without having had previous service as 
enlisted men; and (b) persons in civil life who had the required sen-ice as paymaster's 
clerks in the Navv, but whose appointments were revoked within six months prior 
to the passage of the act. (See C. M. 0. 12, 1915, p. 13.) 

Therefore, where a paymaster's clerk being eligible for appointment under the 
above law as chief pay clerk was examined and found not qualified, which finding 
was approved by the Secretary of the Navy and made final by the revocation of his 
appointment, he can not be examined again for appointment as chief pay clerk with 
a view to appointment as one of the exceptional cases specified in the law. 

If he were so examined, found qualified and appointed, this would not only be 
contrary to the law, but would not entitle him to the pay of the office to which thus 
illegally appointed. File 28554-135:1, J. A. G., Aug. 14, 1915; C. M. O. 29, 1915, 8-9. 
See also File 5460-77, Sec. Navy, Sept. 7, 1915. 

2. Same— The naval appropriation act of March 3, 1915 (38 Stat. 942) provides in part 

that "paymasters' clerks now in the service and former paymasters' clerks whose 
appointments have been revoked within six months next preceding the passage of 
this act * * * may, upon the passage of this act, be warranted as pay clerks with- 
out previous service as enlisted men or as acting pay clerks." 



PAY CLERKS AND CHIEF PAY CLERKS. 455 

In the ease of a former paymaster's clerk who was otherwise eligible for appointment 
as pay clerk if found qualified by examination, except that instead of having his 
appointment "revoked" he presented his "resignation" and his "resignation" was 
accepted by the department, it was held that such former paymaster's clerk was not 
eligible for appointment as pay clerk under that part of said act above quoted, as his 
appointment was not "revoked" within the meaning of the law. However, this 
former paymaster's clerk, having had over nine years honorable, continuous service 
in the Navy as yeoman, would be rendered immediately available for appointment 
as acting pay clerk in the event that he should enlist in the Navy and be given an 
acting appointment as chief yeoman, in accordance with other provisions of the 
act cited above. File 5460-71, J. A. G., March 25, 1915; C. M. 0. 12, 1915, 13. 

3. Same — Service on board the "receiving ship" at Cavite, P. I., and at the Naval Hos- 

pital, Yokohama, Japan, is not service "on board a cruising vessel of the Navy" 
within the meaning of the act approved March 3, 1915 (38 Stat. 942), with reference to 
the appointment of acting pay clerks from enlisted men. In this case the vessel 
doing duty as receiving ship was also a cruising vessel, but the pay clerk concerned was 
attached to such vessel as a member of the receiving ship's personnel, and not as a 
member of the personnel attached to the vessel as a cruising ship. (See Naval Instruc- 
tions, 1913, 1-585-587.) File 5460-79, J. A. G., Sept. 18, 1915; C. M. O. 31, 1915, 5. 

4. Bonds— It has repeatedly been decided by the Supreme Court that the department 

has the right to require a bond in certain cases without express statutory authority,. 
and Naval Instructions, 1913, 1-3901, expressly provide that such officers "as the 
Secretary of the Navy may direct " shall be required to furnish bonds. File 3950-1283, 
J. A. G., Oct. 18, 1916. 

5. Chief pay clerk— Tried by general court-martial. C. M. O. 46. 1915; 36, 1916. 

6. Embezzlement— "A pay clerk could not consistently be charged with 'embezzling' 

Government funds which were in contemplation of law in the possession of the officer 
of the Pay Corps under whom he was serving and were not received by the clerk in 
the lawful performance of the duties of his office. " File 3980-12J3, J. A. G. , Oct. 18, 
1916. 

7. Haiti— The act of June 12, 19 16 (39 Stat. 223) , entitled "An act to authorize and empower 

officers and enlisted men of the Navy and Marine Corps to serve under the Government 
of the Republic of Haiti , and for other purposes , ' ' is construed as authorizing the Presi- 
dent to detail such chief pay clerks , pay clerks , and acting pay clerks to assist the Re- 
public of Haiti " as may be mutually agreed upon by him and the President of the 
Republic of Haiti , ' ' notwithstanding that such clerks may , under such detail, be in the 
performance of duty independent of pay officers. By this construction the above act 
modifies the act of March 3, 1915 (38 Stat. , 943) , providing that "chief pay clerks, pay 
clerks, and acting pay clerks shall be assigned to duty with pay officers under such 
rules as the Secretary of the Navy may prescribe," to the extent above indicated. 
File 5460-84, J. A. G., Aug. 16, 1916; C. M. 0. 30, 1916, 8. 

8. Legality— Of pay clerks, not connected with pay office, witnessing payment to enlisted 

men and civil employees. File 26254-2050, Sec. Navy, July 14, 1916. 

9. Pay clerks— Tried by general court-martial. C. M. O. 6, 1916. 

10. Status— Of pay clerks who fail professionally or physicallv for permanent appoint- 

ments under the act of March 3, 1915 (38 Stat. 942). File 5460-75, J. A. G., June 
29, 1915. 

11. Same— "Pay clerks have by law been given a permanent status and are assigned to 

duty with officers of the Pay Corps who no longer have the selection of their clerks. - ' 
File 3980-1283, J. A. G., Oct. 18, 1916. 

PAY OFFICERS. See also Disbursing Officers; Embezzlement. 

1. Confinement of. C. M. O. 33, 1896, 4. 

2. Delegation of responsibility— Paymasters may not delegate anv part of their respon- 

sibility to their subordinates. This practice subjects the subordinate to the possi- 
bility of unjust suspicion, it exposes him to temptation, and it is a culpable avoidance 
on the part of the paymaster of the care and labor necessarily incident to the faithful 
and proper performance of his duties. G . O. 74, Apr. 7 , 1S66. 

3. Responsibility of — Order of superior of pay officer to make payment. £<< File 26543-66, 

Sept. 8, 1911; R. S.285. 

4. R. S. 285— An order by the Secretary of the Navy has been held to be within this sect ion. 

File 26254-1451:11, Apr. 12, 1915, citing Swaim v. U. S. (165 I'. S.,557) and 30 Op. 
Atty. Gen. 



456 paymaster's clerks, marine corps. 

PAT RECEIPTS. 

1. Destroyed— By paymaster's clerk. C. M. 0. 26, 1915. 

2. Evidence — Photographs of— Certified photographs of pay receipts admitted in evidence. 

G. C. M. Rec. 30684, p. 263. 

PAY ROLLS. 

I. Evidence— Pay roll introduced in evidence in a general court-martial trial. C. M. O. 

30684, p. 20. 

PAYMASTERS, ASSISTANT. See Assistant Paymasters. 

PAYMASTER'S CLERKS. 

1. "Absence from station and duty after leave had expired" — Charged with. C. 

M. O. 38, 1913. 

2. "Absence from station and duty without leave"— Charged with. C. M. 0. 31, 1905. 

3. Desertion — Charged with. See Desertion, 98. 

4. General court-martial— Tried by. G. 0. 143, Oct. 28, 1869; C. M. O. 3, 1903; 31, 1905; 

39, 1905; 32, 1908; 4, 1907; 29, 1911; 30, 1911; 26, 1912; 37, 1912; 35, 1913; 38, 1913; 24, 1915; 
26, 1915. 

5. Pay clerks— Tried by general court-martial— Court-martial orders called them "pay 

clerks." C. M. O. 102, 1894; 160, 1901; 26, 1902. 

6. Reserve ships— When assignable to. See File 13352-407, J. A. G., March 16, 1912. 

7. Retirement of. See Retirement of Officers, 38. 

8. Sentence— Of dismissal by general court-martial— Not necessary to be confirmed by 

the President as a paymaster's clerk is neither a commissioned nor a warrant officer. 
The sentence may be carried into execution when approved by the convening au- 
thority. C. M. O. 173, 1902; 16 J. A. G. 65, Nov. 2, 1911. See also Paymaster's 
Clerks, 9. 

9. Same— The two last sentences of dismissal adjudged in the cases of paymaster's clerks 

were confirmed by the President. C. M. O. 24, 1915; 26, 1915. 
10. Status of —The status of paymaster's clerks is somewhat similar to that of midshipmen 
in that they both serve under appointments made by the Secretary of the Navy, 
although that of a midshipman contains the words, "By direction of the President?' 
16 J. A. G. 68, Nov. 2, 1911. See also Appointments, 30. 

II. Same— Upon detachment of pay officer. File 26254-359, J. A. G., Nov. 9, 1909. 

12. Same— Prior to act, June 24, 1910 (36 Stat. 606). See File 5460-59, J. A. G., Nov. 26, 
1912. 

PAYMASTER'S CLERKS, MARINE CORPS (CLERKS TO ASSISTANT PAY- 
MASTERS). 

1. Acting paymaster's clerk. See Philippine Campaign Badges, 2. 

2. Allotments— A clerk to an assistant paymaster is an officer of the Marine Corps within 

the meaning of the act of June 10, 1896 (29 Stat. 361) authorizing officers of the Navv 
and Marine Corps to make allotments. (121 S. & A. Memo. 1699.) File 19245-43? 
J. A. G., Sept. 8, 1911, p. 5. 

3. General court-martial— Paymaster's Clerk, U. S. M. C. , tried by general court-martial 

on charge of" Knowingly and willfully misappropriating and applying to his own use 
and benefit money of the United States intended for the naval service thereof." 
CM. 0.10,1916. 

4. Number of. See Paymaster's Clerks, Marine Corps, 5. 

5. Retirement of— A clerk, one of the authorized five, to an Assistant Paymaster, U. S. 

Marine Corps, is entitled to retirement under the provisions of R. S. 1444, made appli- 
cable to him (1) by the clause in the act, June 24. 1910 (36 Stat. 625) relating to clerks 
to Assistant Paymasters, U. S. Marine Corps; (2) by the clause in the act, March 3, 
1911 (36 Stat. 1044) providing for the retirement of paymaster's clerks in the Army; 
and (3) by the provision in the act, June 24, 1910 (36 Stat. 606) authorizing the retire- 
ment of paymaster's clerks in the Navy. If the clerk in question, is a clerk to an 
Assistant Paymaster, U. S. Marine Corps one of the "five in all" and is 62 years of 
age or over, he is entitled to retirement under the provisions stated, otherwise not. 
File 27231-34, J. A. G., April 25, 1911. 

6. Same — Since employment in connection with the Marine Corps in the Philippines 

dining the Philippine campaign in a civilian capacity did not operate to make such 
employee an officer or enlisted man of said corps (File 19245-43:1, Sec. Navy, Mar. 8, 
1912) the department held that a pay clerk, having been so employed, should not be 
considered as having been in the military service in connection with questions of 
precedence, or retirement for length of service. File 19245-43:3, Sec. Navy, July 6, 
1915; C. M. O. 27, 1915, 10. 



MARINE CORPS. 457 

7. Status of— " Formerly clerks to Assistant Paymasters in the Marine Corps were not 

regarded as officers except in a very limited sense and within the purview of certain 
statutes, although their status is now assimilated to that of paymaster's clerks in the 
Army,, and thev are entitled to retirement as are pavmaster's clerks in the Navv 
(File 27231-34). " File 19245-43, J. A. G., Sept. 8, 1911, p. 4. See also J. A. G. Memo'., 
Sept. 13, 1916. 

8. Same — There was no such office in the Marine Corps as clerk to a Pavmaster or an 

Assistant Paymaster until 1910 (act June 24, 1910, 36 Stat. 625). File 19245-43, 
J. A. G., Mar. 7, 1912. 

9. Warrant officers— The provisions of the act of March 3, 1915 (38 Stat. 942), in regard to 

warranting pay clerks of the Navy, is not sufficiently broad 'to include clerks to 
Assistant Paymasters of the Marine Corps. File 5460-81, J. A. G., May 12, 1916. 

PAYMASTER GENERAL OF THE NAVY. 

1. Death gratuity— Decision of Paymaster General conclusive as to payment. See 

Death Gratuity, 21-23. 

2. General court-martial— Tried on the charges of "Scandalous conduct tending to 

the destruction of good morals" and "Culpable inefficiency in the performance of 
duty." C. M. O. 8, 1886. 

3. Rank— And commission for— Act of June 24, 1910 (36 Stat. 605). See Bureau Chiefs, 0. 

4. Retired Paymaster General.— Issuance of commission to. See File 22724-18, J. A. G., 

Dec. 4, 1911. 

PEACE CONFERENCE. 

1. Retired officer— Appointed as a delegate to The Hague Conference. See Retired 
Officers, 38. 

PEERS. 

1. Accused— Was convicted by a "tribunal composed of his peers." C. M. O. 17, 1915, 3. 

PENAL CODE. (Act of Feb. 16, 1909, 35 Stat. 1088.) C. M. O. 12, 1911, 6. 

PENAL STATUTES. ' 

1. Act of August 5, 1882 (22 Stat. 28)— Is not a penal statute. File 26260-392, J. A. G.. 

June 29, 1911, p. 22. 

2. Construction of. See Statutory Construction and Interpretation, 88-92. 

PENALTY ENVELOPES. 

1. Foreign countries— Mail for. See File 3980-1185. 

2. Naval Militia. See Naval Militia, 26. 

3. Newfoundland. See Newfoundland. 

♦'PENDING QUESTIONS." 

1. Attorney General's opinion — Requested only on. See Attorney General, 17. 

PENITENTIARY. 

1. Officers — Sentence involved imprisonment in penitentiarv. C. M. O. 173 100° • 15 

1908, 3; 31, 1913; 50, 1914. 

2. Paymaster's clerk — Sentence involved imprisonment in a penitentiary. C M O 

26, 1915. 

3. Paymaster's clerk, U. S. M. C— Sentence involving confinement in penitent iar\ 

C. M. O. 10, 1916. 

PENNSYLVANIA, STATE OF. 

1. Governor of— Made a requisition on naval authorities for deliverv of an enlisted man 

C. M. O. 35, 1915, 8. 

2. Law approved— April 22, 1794— Sunday ball playing at navy yard. C. M. O. 31. L914 

16. See also Sunday Laws. 

PENSIONS. 

1. Enlistment— Receipt of pension— Receipt of pension is no bar to enlistment G C M 

Rec. 23586; File 26251-4685:1, J. A. G., Apr. 18, 1911. 

2. Enlistment in Naval Militia— Effect of. on pension. See Natal Militia. II, 28 

3. Jurisdiction— Recommended: That the department furnish the Commissioner of Pen- 

sions with all facts of record bearing upon the service of claimants, leaving the 
determination of doubtful questions and the drawing of inferences from such facts 
to the jurisdiction of the Pension Bureau which is claimed by the Interior Depart- 
ment to be exclusive. The law, as interpreted by the Interior Department, having 
made it the duty of the Commissioner of Pensions and his superiors to decide all 



458 PENSIONS. 

questions of law and fact which may be involved in pension claims, there is no reason 
why this department should be called upon to render an "opinion" upon such 
questions for the information or guidance of another department of the Govern- 
ment, which claims that its jurisdiction thereof is exclusive. File 26510-1214, 
J. A. G., Sept. 2, 1915. 

4. Same — Requests for information concerning pensions should be addressed to the Com- 

missioner of Pensions, under whose jurisdiction lies the authority of granting pensions 
to claimants and deciding questions of law and fact relative thereto. File 26250- 
709:1, Jan. 5, 1916. See also File 26510-1247, Sec. Navy, Feb. 8, 1916; 26250-1285, 
Sec. Navy, July 21, 1916; C. M. O. 49, 1915, 26; Naval Militia, 27. 

5. Naval Militia— Member of Naval Militia dies on cruise with Regular Navy. See Naval 

Militia, 27. 

6. Same— Effect on pension of enlistment in Naval Militia. See Naval Militia, 11, 28. 

7. Retired officers— Whether compensation is "pay" or "pension." See Retired 

Officers, 16. 

8. Right to — No pensioner has a vested legal right to his pension. Pensions are the boun- 

ties of the Government, which Congress has the right to give, withhold, distribute, 
or recall, at its discretion. (U. S. v. Teller, 107 U. S. 64, 68.) 15 J. A. G. 368, June 
29, 1911. 
PERJURY. 

1 . Charging of— In prosecutions for " Perjury ' ' committed on examination before a naval 

general court-martial, or for the subornation thereof, it shall be sufficient to set forth 
the offense charged on the defendant, without setting forth the authority by wliich 
the court was held, or the particular matters brought before, or intended to be brought 
before, said court (R. S. 1023). " Perjury" committed by persons in the naval serv- 
ice is punishable under R. S. 1624, article 14, clause 4, and article 42. 

2. Civilian witness— Testifying before a court of inquiry. File 28478-25:7, Jan. 4, 1916. 

See also section 175, act of March 4, 1909, Criminal Code (35 Stat. 1111); section 12, act 
of February 16, 1909 (35 Stat. 622). 

3. Court of inquiry— False testimony before a court of inquiry under oath will sustain 

a charge of " Perjury." C. M. O. 51, 1014, 9. See also Courts of Inquiry, 40. See 
Ct. Inq. Rec. 6004 for a case of an enlisted man who made conflicting statements and 
perjured himself while testifying in his own defense. 

4. Definition— Perjury is defined and made punishable by fine and imprisonment bv the 

Criminal Code, act of March 4, 1909, section 125 (35 Stat. 1111), as follows: "Who- 
ever, having taken an oath before a competent tribunal, officer, or person, in any 
case in which a law of the United States authorizes an oath to be administered, that 
he will testify, declare, depose, or certify truly, or that any written testimony, decla- 
ration, deposition, or certificate by him subscribed is true, shall willfullv and contrary 
to such oath state or subscribe any material matter which he does not believe to be 
true, is guilty of perjury, and shall be fined not more than two thousand dollars and 
imprisonment not more than five years." See File 26251-12446, J. A. G., Nov. 1, 191g. 

5. Enlisted men— Charged with. C. M. O. 47, 1910, 5; 22, 1913, 5; File 26251-12446; 

G. C. M. Rec. 30146; 31992; 32762. 

6. Evidence necessary to prove. File 26262-1569, Sec. Navy, Dec. 18, 1912. 

7. False swearing— Since the passage of the act of March 4, 1909, 35 Stat., 1111 (Criminal 

or Penal Code) false swearing and perjury are synonymous. 

8. False testimony— Under oath before a court of inquiry will sustain a charge of " Per- 

jury." See Courts of Inquiry, 40. 

9. Fraudulent enlistment involved in— Every fraudulent enlistment includes the 

offense of "Perjury," and that is a crime which has always been visited with most 
serious consequences by the civil laws, being recognized as malum in se and not 
merely malum prohibitum. File 14535-1088, J. A. G., Nov. 14, 1911. See also De- 
serters, 13; Impeachment, 9. 

10. General court-martial— False testimony before a naval general court-martial consti- 

tutes " Perjury." C. M. O. 47, 1910, 5. 

11. Intent— Specific intent required in " Perjury." C. M. O. 8, 1911, 5. 

12. Officer— Charged with. C. M. O. 50, 1914; G. C. M. Rec. 29422. 

13. Reenlistment— Of man guilty of " Fraudulent enlistment." See Deserters, 13. 

14. "Scandalous conduct tending to the destruction of good morals"— An en- 

listed man was charged with "Scandalous conduct tending to the destruction of 
good morals" instead of " Perjury," because the summary court-martial before which 
he is alleged to have testified falsely, on its face, was not properly convened. The 



PERJURY. 459 

precept and action were signed by the commanding officer, disciplinary barracks, 
instead of commandant, marine barracks. File 26251-7617. See also File 26287-415; 
26287-1013; 26287-1183. 

15. Specific intent— Required in "Perjury." C. M. O. 8, 1911, 5. 

16. Specifications— Necessary allegations in specifications— In this case the specification 

of the charge alleging perjury was faulty, in that, while it properly alleged that the 
testimony given by the accused was false, it did not set forth what was the truth in 
regard to the matter. (U. S. v. Pettus, 84 Fed. Rep. 791, 794; Bartlett ©.U.S., 106 
Fed. Rep. 884.) C. M. O. 47, 1910, 5. See also Charges and Specifications, 92. 

17. Statutory — Perjury committed by persons in the United States is punishable under 

R. S. 1624, article 14, clause 4, and article 42. Perjury is defined and made punish- 
able by fine and imprisonment by the Criminal Code, act March 4, 1909, section 125 
(35 Stat. 1111). See Perjury, 4. 

PERJURY, TENDING TO THE DESTRUCTION OF GOOD MORALS AND 

DISCIPLINE— Enlisted man— Charged with. C. M. O. 15, 1879. This offense is 
now charged as " Perjury." 

PERMANENT LEGISLATION. 

1. "Hereafter"— As indicated by. C. M. O. 12, 1915, 12. See also "Hereafter." 

PERSISTENT DELINQUENCY IN THE RENDITION OF ACCOUNTS, IN VIO- 
LATION OF THE UNITED STATES NAVY REGULATIONS. 

1. Paymaster— Charged with. C. M. O. 92, 1903. 

PERSISTENT DELINQUENCY IN THE RENDITION OF ACCOUNTS, IN VIO- 
LATION OF SECTION 12 OF AN ACT OF CONGRESS ENTITLED "AN 
ACT MAKING APPROPRIATIONS FOR THE LEGISLATIVE, EXECU- 
TIVE, AND JUDICIAL EXPENSES OF THE GOVERNMENT FOR THE 
FISCAL YEAR ENDING JUNE 30, 1895, AND FOR OTHER PURPOSES." 

1. P. A. Paymaster— Charged with. C. M. O. 92, 1903. 

2. Paymaster— Charged with. C. M. O. 33, 1896. 

PERSONAL EFFECTS. 

1. Disposition of— Deceased officers and men of the naval service. See Deserters, 

11, 12; Disposition of Effects. 

2. Loss of, by an officer by reason of shipwreck. See File 26893-235:1, J. A. G., 

Sept. 2, 1916. 

PERSONAL RELATIONS. 

1. Accused (officer)— And other officers of the ship. C. M. O. 5, 1903. See also Clem- 
ency, 40. 

PETTY OFFICERS. 

1. Drunk— A petty officer intrusted with important duties, who periodically renders 

himself unfit for duty through alcoholism, is criminally untrustworthy and worse 
than useless in the naval service. 0. M. O. 88, 1896. See also C. M. O. 1, 1914, 8. 

2. Instructors— At military and naval institutions. File 7657-361, J. A. G., May 6, 1916. 

See also Retired Enlisted Men, 6, 10, 12. 

PHARMACISTS AND CHIEF PHARMACISTS. 

1. Command. See Command, 21. 

2. Pay of. See File 26254-1898, J. A. G., Nov. 8, 1915. 

3. Total number— Under acts of June 17, 1898, and August 22, 1912. Sec File 27213-3, 

J. A. G., May 6, 1913. See also act of August 29, 1916 (39 Stat. 572). 

PHILADELPHIA NAVY YARD. 

1. Jurisdiction. See Jurisdiction, 105; Murder, 22-24. 

2. Sunday ball playing— Pennsylvania statute, April 22, 1794. See Sunday Laws. 

PHILIPPINE CAMPAIGN. See Philippine Campaign Badges. 

PHILIPPINE CAMPAIGN BADGES'. 

1. Part of uniform— The Philippine campaign badge is a ''part of the uniform" and 
should not be issued to any person except as has been, or now is. entitled to wear 
the "uniform." File 19245-43, J. A. G., Sept. S, 1911. 



460 PHILIPPINE CAMPAIGN BADGES. 

2. Philippine campaign badge— A paymaster's clerk, U. S. Navy, requested that a 

Philippine campaign badge be issued him. He was appointed under date of August 
30, 1901, an " acting paymaster's clerk" in the office of the assistant quartermaster, 
U. S. Marine Corps, at Cavite, P. I., under the provisions of the act of July 1, 1902 
(32 Stat. 687). Held: That inasmuch as it does not appear from the facts that the 
applicant was, on June 27, 1908, the date of Special Order No. 82 (par. 10c), authoriz- 
ing the issue of the Philippine campaign badge, in the Marine Corps in any capacity, 
nor that he has since been in the Marine Corps, he is not entitled to the badge in 
question. File 19245-43, J. A. G., Sept. 8, 1911. 

3. Revocation of— Where an enlisted man of the Marine Corps was discharged as "unfit 

for the service" in order that a life sentence of penal servitude, pursuant to convic- 
tion in a civil court on the charge of murder, might be carried into effect, an award 
of "the China and Philippine campaign badges for his sendees in those campaigns 
should be revoked." The authority to revoke under such circumstances in cases 
of enlisted men of the Marine Corps may be exercised by the Commandant of the 
Marine Corps. File 26519-3:2, Sec. Navy, March 11, 1915, explaining file 26519-3, 
Sec. Navy, Dec. 1, 1914; C. M. 0. 12, 1915, 8. 

PHILIPPINE ISLANDS. 

1. Bilibid prison— Confinement of prisoners in. File 26254-1842. See also Guam, 6. 

2. Campaign. See Philippine Campaign Badges. 

3. Campaign badges. See Philippine Campaign Badges. 

4. Cavite— Jurisdiction. See Jurisdiction, 11, 106. 

5. Cebu, P. I. — Report and recommendation relative to the proposed transfer of the 

naval reservation at Cebu, P. I., to the War Department. 13 J. A. G. 437, April 
22 1905. 

6. Citizenship— By act of July 1, 1902 (32 Stat. 691), inhabitants of the Philippines who 

were Spanish subjects on April 11, 1899, other than those who had elected to preserve 
their allegiance to Spain, were declared "to be citizens of the Philippine Islands 
and as such entitled to the protection of the United States." C. M. O. 49, 1915, 24. 
See also Filipinos, 3. 

7. CM! courts— Jurisdiction. See Jurisdiction, 11, 94-96, 106. 

8. Foreign country — Not a foreign country within meaning of A. G. N. 30, par. 1. File 

26287-580. 

9. General Order No. 121— With regard to General Order No. 121, September 17, 1914, 

it is directed that in cases arising in the Philippine Islands the Secretary of the Navy 
be communicated with in advance of the delivery of persons to the civil authorities 
only when the circumstances are such as, in the judgment of the commanding officer, 
make such action desirable. (See File 26524-274.) CM. O. 9, 1916, 9-10. 

10. Jurisdiction. See Jurisdiction, 11, 94-96, 106. 

11. Naturalization— Of Filipinos by enlistment in Navy— Act of June 30, 1914. See 

Filipinos, 2 

12. Same — Of Filipinos under act of June 29, 1906, sec. 30. See Fillpinos, 3. 

13. Olongapo — Jurisdiction. See Jurisdiction, 94, 95, 96. 

14. Sangley Point, Manila Bay, P. I.— Title of the United States to. See File 7561-03, 

J. A. G.,Sept. 19, 1903. 

15. Subig Bay naval reservation— Jurisdiction. See Jurisdiction, 94, 95, 96. 

16. Treaty with Spain ratified. See Filipinos, 3. 

PHOTOGRAPHS. 

1. Checks— Photographic copies of checks. See Checks, 6; Evidence, Documentary, 37. 

2. Evidence. See Pay Receipts, 2. 

3. Pay receipts. See Pay Receipts, 2. 

PHOTOSTAT COPIES. 

1. Court of inquiry record. File 28478-25:5, J. A. G., Nov. 11, 1915. 

2. Identification records of enlisted men. See G. O. No. 9, War Department, March 

9, 1916. 

3. General court-martial records— Furnished on call of civil court at expense of 

interested party. See File 12475-64:2, Sec. Navy, Aug. 20, 1915. 

PHYSICAL CONDITION OF ACCUSED. See Clemency, 41, 42; Court, 133. 



POLICEMAN. 4Qi 

PIRATES. See G. O. 58, June 20, 1865 

PLEA E IN BaT ENSE ' ^ ° HARGES AND SPECmCATI0NS > 39 > * » 

3. Jurisdiction of cou -fi2 commifS whl, ° F C^Martial, 48. 

q tried by naval courlmarS. "ScSSjSfl ™ SS? ^ rm ^ Miction and accused 

4. Same— Regular Naw on boarri rc a ™»i ^ni nP 58 Serving with Army, 7. 

5. Officer-Severely ScfiedfS SSfdirS^^?V % e ¥ AYAL M ™. 34, 39-41 

Officers, 88. r shl6ldm S himself behind a plea in bar of trial s^ 

ended with these words "Yon will LiL^ P i mand fr ? m the department which 
■^^^^^wfflOaoS^^SM^TSJ 9 i th , fe 9ommunicItion, 
closed." The court overruled the plea and fonnHt^ 6 mcid , ent will he considered! 
ment approved. The case wassm Pto the aSS ?J h « accu fd guilty. The depart- 
of the department. G. C. M Rec 21478a v 5™r J ?M™i> wh Z u - pheld the a ^ion 
- nA^Ji^-J June 15 > 1908 (25 Op Atty &n P 623V jEOP^pr^^ 21478 ' ^ e a ^° °P- 



PLEDGES AND PROMISES. 

1- 5??* s : ^ Debts, 21, 22 



„ « C - M - 0-34, 1908. 5« a&o C. MO 918? S m tte ^ 0f mtoxicants '' 

6 - ^4.^oS^,S^1!^jX*&."tU?? by ^e myself to abstain 
Having violated said pledge he '™ SeThv L™™ 1 '"" attached to this vessel." 

nnbecoming an officer o? the NaVy^' CM oV,"^, '° r " Condm ' t 

POLICE OFFICER. ' ' ' ' l0W)0 - 

l. Witness, as. C. M. o. 7, 1911, io. Set also Evidence, 34 
POLICEMAN. 

1 - En c S M d o" an i^. SSaU,tcd * Polteeman and was tried by genera, eour«„„ ; ,„ i3 , 



462 POST TRADERS. 

POLL TAXES. 

1. "Honorable discharge" — Department is aware of no law by which a person is exempt 

from the payment of "road poll tax and school poll tax" by reason of having served 
in, and received an honorable discharge from the Navy; nor is the department aware 
of any law which would exempt the wife of such a person from payment of "school 
poll tax." File 9212-76, J. A. G., June 13, 1916. See also File 9212-75, J. A. G., June 
5, 1916. 

2. Liability of persons in naval service— The case of Ex parte White (228 Fed. Rep. 88). 

decided November 30, 1915, holds in general that enlisted men of the Army who have 
parental domiciles beyond the State of New Hampshire may not be liable to pav 
poll taxes required by a State law, even though such men establish a temporarv 
residence in New Hampshire outside the Army post at which they are doing duty. " 
The above decision is of importance to the Navy Department as several enlisted 
men of the naval service were being prosecuted for nonpayment of poll taxes and the 
Department of Justice arranged with the State authorities of Maine and New Hamp- 
shire to suspend further action until this point was settled by the above-mentioned 
case. (See File 9212-47:14.) C. M. O. 49, 1915, 28. See also File 9386-14, J. A. G., 
Nov. 5, 1915; 9212-22, Feb. 21, 1912; 26252-330:a and b. 

3. Same— "Persons in the naval service can not lawfully be required to pay poll taxes in 

places where they happen to be residing temporarily, incident to the performance of 
duty," and any "attempt by State officers to collect such taxes" will "meet with 
vigorous resistance by the United States." File 9212-74, Sec. Navy, May 20, 1916. 

4. Same — An enlisted man was advised by the department to refuse payment of such 

taxes unless and until the court decides that the collection thereof is lawful; and to 
notify the department immediately by wire should any attempt be made to arrest 
him. File 9212-47:17, Sec. Navy, May 4, 1916. 

5. Purchase, discharge by— The department is aware of no law by which a person in 

the State of Vermont is exempt from the payment of poll tax because of service in 
the Navy terminated "by a purchase discharge. " File 9212-80, J. A. G., Aug. 1, 1916. 

6. Road poll tax. See Poll Taxes, 1. 

7. School poll tax. See Poll Taxes, 1. 

♦'POOL FUND." 

1. Receiving ship, Norfolk, Va. See File 3773-148, J. A. G., Dec. 27, 1912. 

PORTO RICO. 

1. Ceded to United States— By article 2 of the treaty between the United States and 

Spain, proclaimed April 11, 1899 (30 Stat. 1755), Spain ceded to the United States 
the island of Porto Rico. By article 8 of the same treaty (30 Stat. 1758) Spain ceded 
in Porto Rico all the buildings, wharves, barracks, forts, structures, public highways, 
and other immovable property which, in conformity with law, belong to the public 
domain, and as such belong to the Crown of Spain. File 26524-32, J. A. G., July, 1911. 

2. Citizenship. See Citizenship, 31, 32. 

3. Jurisdiction. See Jurisdiction, 108; Murder, 25. 

4. Marine Corps— Citizen of Porto Rico not eligible for appointment as second lieutenant. 

See Citizenship, 31. 

5. Naval reservation— Interpretation of the order of the President of June 30, 1903, modi- 

fying proclamation of June 26, 1903, reserving lands in Porto Rico. File 7142-03, 
J. A. G., Sept. 21, 1903. 

6. Navy yard— Employees at Navy yards. See Citizenship, 32. 

7. R. S. 1860— Section I860, Revised Statutes, as amended, applies to Porto Rico, which 

has been held to be a "Territory" under the terms of this section. File 1831-S, Sec. 
Navv, Aug. 30, 1907; 5381-1, Sec. Navy, Aug. 30, 1907; 11 Comp. Dec. 336, 339; 9736- 
18, J'. A. G., June 25, 1910, p. 16. 

POST-GRADUATE COURSE AT THE NAVAL ACADEMY. See Midshipmen, 65. 

POST MORTEM. See Autopsy. 

POST TRADERS. 

1. Abolished. See File 3980-741, J. A. G., Dec. 3, 1912. 

2. Indebtedness to. See File 16318-2, J. A. G., Jan. 15, 1910. 

3. Permitted. See letter to Colonel Commandant, Marine Corps, Sec. Navy, March 16, 

1883. 



PRECEDENCE. 463 

POSTPONEMENT. See also Army, 13: Constitutional Rights of Accused, 17; 
Counsel, 20; Court, 134; Trials, 7. 

I. Court— Should grant if accused desires postponement for reasonable time to secure 

witnesses. See Court, 134. 

PRECAUTIONARY ORDERS IN TIME OF DANGER. See Collision, 17, 19. 

PRECEDENCE. See also Command; Commissions; R-1009. 

1. Army and Navy officers. See Precedence, 16, 17. 

2. Boards. See Precedence, 10. 

3. Change of precedence requested— Held, That as do mistake was made in the original 

determination of a certain officer's date of precedence and as his precedence since his 
appointment has not been affected by change in law, etc., his request for change in 
precedence should be disapproved. File 11130-9, J. A. G., July 18, 1910. 

4. Cliiefs of Bureaus. See File 4649-02, July 17, 1902; 5050-99, July IS, 1899; 6417, Feb. 

18, 1907. 

5. Command— Succession to during temporary absence of commandant of a navy yard. 

See Command, 14. 

6. Commanding officer— Has precedence over all under his command. See Command- 

ing Officers, 30. 

7. Commissions of same date. See Commissions, 28; Precedence, 17, 18; Midship- 

men, 66. 

8. Constructive service. See Constructive Service. 

9. Courts of inquiry. See Precedence, 10. 

10. Courts-martial — In processions on shore, od general courts-martial, summary courts- 
martial, courts of inquiry, boards of survey, and all other boards, line and staif 
officers shall take precedence according to rank. See R. S. 1489. 

II. Ensigns and second lieutenants of Marine Corps— Appointed from graduates of 

Naval Academy, same date of commission but no prior commissioned service. See 
Midshipmen, 66. 

12. Febiger Board. See File 5258-04; 5519-97; 6104-97; Navy Register, Jan., 1882, and 

Jan., 1885. 

13. Line officers— By law, regulation, and established customs, take precedence accord- 

ing to rank and date of commission, and not by length of service. File 13559-17:1, 
Sec. Navy, June 19, 1916. See also File 3809-640:2, J. A. G., June 12, 1916; 26253-460:1, 
J. A. G., May 13, 1916; Warrant Officers, 23. 

14. Marine Corps — Inasmuch as officers of the Marine Corps take rank with the Navy 

according to the date of commission, the precedence list having nothing to do with 
the Marine Corps, the officer whose commission bears the older date takes rank. File 
5519-97, Sec. Navy, Nov. 1, 1897. 

15. Marine and Army officers. See Precedence, 16, 17. 

16. Marine officers and officers of Navy— Same rank — There is no express provision of 

law which fixes the relative rank and precedence of officers of the Marine Corps and 
officers of the line of the Navy. 

Ey an unwritten law of the Army and Navy, officers of the Army and officers of the 
Navy take relative rank, as respects the two classes, according "to their respective 
grades; and if of similar grade, then according to dates of commission. 

Officers of the Marine Corps, who are "in relation to rank on the same footing as 
officers of similar grades in the Army," take rank and precedence relativelv lo line 
officers in the Navy according to grade; and if of similar grade, then according to 
dates of commission. 

There is no law making any distinction as to relative rank and precedence between 
the officers of the Marine Corps who are, and those who are not, graduates of the 
United States Naval Academv, either as respects themselves or officers of the lin^ 
of the Navy. (25 Op. Attv. Gen. 517; 26 Oji. Attv. Gen. 16; 29 On. Attv. Gen. 264.) 
File 11130-27, J. A. G., Aug. 26, 1915. See in this connection File 3980-675:17, J. A. C, 
Aug. 19, 1911, p. 10. 

17. Marine officers and officers of Navy when of same rank, same dates of com- 

mission, and prior commissioned service— With reference to this situation in 
the Army it is provided by law (sec. 1219, R. S.) that "in fixing relative rank between 
officers of the same grade and date of appointment and commission, the time which 
each may have aetuanv son ed as a commissioned officer of the United States, whether 
continuously or at different petiods. shall be taken Into account. And in computing 
such time, no distinction shall be made between service as a commissioned officer 

50756°— 17 30 



464 PKECEDENCE. 

in the Regular Army and service since the 19th day of April, 1801, in the Volunteer 
forces, whether under appointment or commission from the President or from the 
governor of a State." 

There is no similar statutory provision with reference to officers of the Navy, but 
the Navy Regulations, 1913, R-1010 (2) provide: "In fixing the relative rank of officers 
of tho Army, officers of the Navy, and officers of the Marine Corps, of the same erade 
and date of appointment and commission, the time which each may have actually 
served as a commissioned officer of the United States, whether continuously or at 
different periods, shall be taken into account. " File 11130-27, J. A. G., Aug. 20, 1915. 
See in this connection 13 J. A. G., 459, 1905; File 3980-575, J. A. G., Aug. 19, 1911, 
p. 10; Commissions, 28. 

18. Marine officers and officers of the Navy, same rank, same date of commis- 

sion, but no prior commissioned service. See Midshipmen, 66. 

19. Midshipmen— Appointed to Marine Corps. See Midshipmen, 66. 

20. Same— Midshipmen are graded according to proficiency in studies and not by dates 

of entry into the Academy (sec. 1483, R. S.). Therefore a midshipman who gradu- 
ated at the head of his class and who entered in September would take precedence over 
a midshipman of the same class standing below him in studies, but who entered the 
Academy in May preceding September. 

The departmental construction of laws relating to the relative precedence of line 
and staff officers should not be changed. 

A staff officer w r ould take precedence with but after the midshipman entering the 
service six years before the staff officer. 

Questions of precedence are determined by the law and not by the individual desire 
of the person affected. File 11130-2b, J. A. G., July 31, 1909. See also Commissions, 
28. See also File 11130-37, J. A. G., Jan., 1917, for precedence of midshipmen as 
affected by Act of Mar. 4, 1913 (37 Stat. 891). 

21. Navy yard— Succession to command in temporary absence of commandant. See 

Command, 14. 

22. Precedence list— Has nothing to do with Marine Corps. See Precedence, 14. 

23. Processions on shore. See Precedence, 10. 

24. Professor of mathematics. See Professors of Mathematics. 

25. Rear admirals — Divided into senior and lower nines for pay, not precedence. See 

Rear Admtrals, 3. 

26. Retired officers— With those on the active list. File 4991-1, Apr. 8, 1907. See also 

Command, 14. 

27. Same— Marine Corps. See Commissions, 17, 18. 

28. Secondary to devotion to public interests— " Whenever men are associated in any 

calling or undertaking w r here the reward attainable for efficiency and faithful per- 
formance of duty is advancement to higher position according to length of service, 
those so associated naturally regard the matter of precedence with great jealousv. 
So it is with the officers of the naval and military forces of the Government. To 
them precedence is advancement. It is the very essence of the reward for which 
they constantly strive and to the attainment of which they must subordinate all 
other personal aims. First with them always is unselfish arid unqualified devotion 
* to the public interests they are pledged to serve. Then foremost among secondary 
considerations comes the reward promised for duty done." 13 J. A. G. 471. 

29. Secretary of the Navy, absence of— In the absence of the Secretary of the Navy, the 

Assistant Secretary of the Navy [and the Chief of Naval Operation] the duties of 
the Secretary of the Navy, by direction of the President, are to be performed by the 
following designated chiefs of bureaus, in the order named: The Chief of the Bureau 
of Navigation; in his absence, the Chief of the Bureau of Ordnance; and in the absence 
of those two, the Chief of the Bureau of Steam Engineering. File 12753-9, July 29, 
1912. 

30. Staff officers— Marine officers take rank with line officers of the Navy according to the 

dates of their commissions while staff officers of the Navy take rank with line offi- 
cers in accordance with their dates of precedence. File 5519-97, Sec. Navy, Nov. 1, 
1897. But see Act of Mar. 4, 1913 (37 Stat. 891), and R-1009 (2), quoted in File 
11130-37, J. A. G., Jan., 1917; pp. 3, 4. 

31. Succession to command— Navy yards. See Command, 14. 

PRECEDENTS. See also Res Judicata; Stare Decisis. 

1. Care — Should be taken not to make erroneous precedents. C. M. O. 43, 1906, 3. See 
also C. M. O. 88, 1895, 1; 104, 1897, 5-6; 89, 1897; 7, 1914, 15. 



PKECEDENTS. 465 

2. Conclusive — Where department's precedents establish a uniform practice. See 

Statutory Construction and Interpretation, 23-26. 

3. Customs of the service— When they may be taken as precedents. See Customs of 

the Service, 4. 

4. Department, of — The decisions and instructions of the Navy Department upon 

such points as this are in such easily accessible form in court-martial orders that ignor- 
ance of or inattention to them are inexcusable. C. M. O. 42, 1915, 8. 

5. Disapproval— To emphasize necessity of naval courts-martial conforming to correct 

precedents and procedure. C. M. O. 49, 1915, 11. 

6. Sentence disapproved— To avoid creation of false precedents. C. M. O. 8, 1915, 3. 

7. Same — Better that the accused should escape punishment than that a manifestly im- 

proper sentence should receive the approval of the department and thus become a 
precedent for the guidance of naval courts-martial in future cases. See Criticism of 
Courts-martial, 35. See also Secretary of the Navy, 33. 

PRECEPTS. 

1. Accused— Should be present when precept is read. See Accused, 1-9. 

2. Adjournment of court-martial — Court may be granted authority by convening 

authority to adjourn over holidays in precept. See Adjournment of Courts- 
Martial, 1. 

3. Addressed— Precept should be addressed to president of general court-martial. See 

Precepts, 17. 

4. Amendments to — Precept not to be amended by the judge advocate of court. C. M. O. 

216, 1901, 2. 

5. Board of Medical Examiners. See Boards of Medical Examiners, 5. 

6. Certified copy— The certified copies of the precepts in many general court-martial 

cases have been prefixed instead of appended to the records. (Navy Regulations, 
1913, R-768; Forms of Procedure, 1910, pp. 18, 55; C. M. O. 16, 1912, p. 3.) C. M. O. 
42, 1914, 4. See also C. M. O. 1, 1894, 3; 3, 1894; 62, 1894; 12, 1895; 53, 1895; 2; 57, 1897; 
58, 1897; 54, 1898; 17, 1910, 12; 36, 1914, 6; 41, 1914, 5. (C. M. O. 10, 1897, 3, stating that 
the precept should be "prefixed" is overruled. See also in this connection G. O. 
114, Mar. 22, 1869.) 

7. Challenge— An error in statement of the rank, title, or relative position of any member 

in the precept will not affect the validity of the order. See Challenges, 15. 

8. Commander in chief— May not change precepts convening Boards of Medical 

Examiners and Naval Examining Boards. See Boards of Medical Examiners, 5. 
Naval Examining Boards, 4. 

9. Discussed. G. C. M. Rec. 22761; 22810; 22924; 22925; 23003; 23095; 23119; 23218; 23431. 

10. Error in— Rank, title, or relative position of a member. See Challenges, 15; Pre- 

cepts, 7. 

11. Examining Boards, Naval— Signed by Secretary of the Navy. See Boards of 

Medical Examiners, 5; Naval Examining Boards, 4. 

12. Judge advocate — Precept is sufficient authority for judge advocate to act as such. 

C. M. O. 38, 1895, 2; 53, 1895, 2. 

13. Same— The copy of the precept appended to the record shall be certified as true by 

the judge advocate. C. M. 0. 17, 1910, 12; 21, 1910, 16; 27, 1913, 12. 

14. Marking of. See Charges and Specifications, 59. See also C. M. O. 27, 1913, 12, 

where marking was in error. 

15. Members and judge advocates of general courts-martial— The precept is the 

order of appointment of the members and judge advocate of a general court-martial, 
and is the only authority for them to act as such during the trial. The orders to officers 
issued by the Bureau of Navigation, the Major General Commandant of the Marine 
Corps, or other authority, as the case may be, directing them to report to the president 
of the court for duty are in no sense appointments to the court and are not essential 
in order that the officer in question mav properly sit as a member or judge advocate 
of the court. C. M. O. 28, 1910, 5; 33, 1912, 3. See also C. M. O. 155, 1S97; 74, 1899; 
103, 1899; 26, 1910, 8. 

16. Same— Precept and modifications are alone capable of making changes and substitu- 

tions in court. C. M. O. 68, 1898. 

17. Modifications of— The precept and all modifications should be addressed to the 

president of the general court-martial and should not be confused with the orders 
to perform the duty. C. M. O. 26, 1910, 8. 

18. Same— Must be read in court. C. M. O. 103, 1S99; 35, 1900. 



46Q PRECEPTS. 

1* Naval examining boards-Signed {.ySecgtav^of the Navy. M BoattDS or IK* 

CAL EXAMINERS, 5; NAVAL EXAMINING BOARDS, 4. 

2?- ^g^j^i^l^&& and judge advocates to duty on courts-martial 
22 Orders Sperioimduty-As members and judge advocates should not be confused 
22 ' ° w£hp\°ec^ a certified copy 

C. M. O. 31, 1910, p. 3.) C. M; O. 42 1914 J- (£ t ^ ££ ££ t a Member's rank was 
24. Promotion of members or judge advocate-in ^P ie ^^ commodore7re tired.'' 
-captain," wbiletherecordof procee* togs ?^ n % d s Sand a certified copy appended 
A modification of the precept should hav e been. issuea anud me mber. This 

to the record ordering ttn officer as a ' c0 ^ d f e '^fX retired Officers, 23 

25 b^S^I^^^^ " JUdge adV ° Cate "^ "' 

the precept." See Aloud, lv • precept convening a general court- 

26 - »^&1^^^^ito^on? y o< pr»W P M PKBCBPXS.e^S. 
27. Retired officers. See Precepts, "• 15 16 

i: sssssksssse; IS I™ 0.--M-— * 

30! Telegrams-Appointing members. C. M. O. 06, 1897, i. 

■PREJUDICE. See Challenges, 13. 

PRESENTING WAFOgg ««■ ffifSWo" ^^ 
^BEFiAUDU^EN? VvIOlTtION OF CLAUSE 1 OF ARTICLE 14, 

1. As^amsurgeon-Charged with. C. M. 0. 15, 1908. 

PRESENTS. See also Superior O^cers^ inferior-Navy Regulations 

1 Superior officer shall not accept preheuts,ci^, « rece ive anv gift or present 

* 1913, R-1520 (2) provides m P^^?^ toi^ersoTin Government employ 

ofiered or presented tc t hem ,asa contriputura g iro y p aragrap h 3 of same articles 

receiving a less salary than »Jf" J^Na^Departaent shall solicit sub- 

^ri^^^Pf^S^^^i^U^ in leases and 

authorities. «« Civtt AuTHOMrra, 19. organization ot naval forces, 

3. Commander in thg-CW ™Ji^ the President to order such naval forces In- 
active or reserve, but it can not requi.e mra. , tQ the land 



Officers, 89. . , . , d t the Navy yard at Brooklyn in the State 

"A Court of Inquiry begun Mid held at . tne *a o Thousand Eight Hundred 



PRESIDENT OF THE UNITED STATES. 467 

6. Commuting sentences. See Commuting Sentences, 4; Dismissal, 18; President 

of the United States, 8. 

7. Dismissal— Phraseology of a dismissal. C. M. 0. 19, 1909. 

8. Dismissal mitigated. — The President mitigated a sentence of dismissal to loss of 

numbers on the theory that latter is included in former. See Dismissal, 18. 

9. Same. See C. M. O. 9, 1879, 2; 5, 1882, 3; 21, 1882, 3; 51. 1882, 3. 

10. Same — " To be reduced in rank so that his name shall be placed at the foot of lieu- 

tenant commanders in the Navy." C. M. O. 50, 1898, 2. 

11. Same — In case of midshipmen. See Pardons, 5, 21. 

12. Disrespect— Naval officer spoke disrespectfully of the President and was tried by 

general court-martial. See Officers, 89. 

13. Heads of department— President acts through— As the President speaks and acts 

through the heads of several departments in relation to subjects which appertain 
to their respective duties, their acts in such matters may be presumed to have been 
done by the approbation and direction of the President, and may be considered, 
in legal contemplation, as his acts. (Weller v. U. S., 41 Ct. Cls. 335; McCollum v. 
U. S., 17 Ct. Cls. 92; McElrath v. U. S., 12 Ct. Cls. 201, 214; Wilcox v. Jackson, 13 Pet. 
498; McElrath v. U. S., 102 U. S. 426.) File 5460-60, J. A. G., Jan. 22, 1913, p. 3. See 
also C. M. O. 12, 1915, 11; 29, 1915, 6; 42, 1915, 13. 

14. Marines serving with Army. See Marines Serving with Army. 

15. Midshipmen— Advisable that sentence of dismissal be confirmed by President. 

C. M. O. 31, 1915, 11. See also Hazing, 6; Midshipmen, 32. 

16. Ministerial acts— The President can not be required to perform ministerial acts in 

person. C. M. O. 12, 1915, 11. 

17. Navy Regulations— Necessity of approval of Navy Regulations by President. See 

Regulations, Navy, 16-19. 

18. Officer— Tried by general court-martial for using disrespectful language to the Presi- 

dent of the United States. G. O. 85, Oct. 11, 1867. See also Officers, 89. 

19. Officer's dismissal— Phraseology in confirming. See C. M. 0. 19, 1909, 1. 

20. Pardons. See Pardons. 

21. Same— The President in the exercise of his power to pardon may commute a sentence. 

See Commuting Sentences, 4; Dismissals, 18; Pardons, 35, 36; President of 
the United States, 8. 

22. Pay clerks— Sentence of dismissal should be confirmed by President, as a pay clerk 

is a warrant officer. 

23. Paymaster's clerks— Not necessary that President should confirm sentence of dis- 

missal. See Paymaster's Clerks, 8, 9. But see C. M. O. 24, 1915; 26, 1915. 

24. Regulations, Navy— Necessity of approval of Navy Regulations by President. 

See Regulations, Navy, 16-19. 

25. Resignations of officers. See Resignations. 

26. Secretary of the Navy— Act of Secretary of the Navy is the act of the President. 

C. M. 0. 12, 1915, 11; 29, 1915, 6; 42, 1915, 13. See also President of the* United 
States, 13. 

27. Sentence— Imposed by Army court-martial, mitigated by President after return of 

accused to naval jurisdiction. C. M. O. 49, 1914, 4. See also Marines Serving 
with Army, 6. 

PRESS COPY. 

l. Evidence, as. See Carbon Copies. 

PRESUMPTIONS. 

1. Death— Presumption of death. See Presumptions of Death. 

2. Law— Everyone is presumed to know the law. See Ignorance of Law. 

3. Normal— "The law presumes the normal, not the abnormal." File 26543-87:2, Sec. 

Navy, Apr. 28, 1913, p. 4. 

4. "Official duties"— The law presumes that official duties are properly performed. 

C. M. O. 27, 1913, 15. 

5. Regulations— Legality of a regulation is presumed. See Regulations, Navy, 48. 

PRESUMPTION OF DEATH. 

1. Death gratuity. See Death Gratuity, 24. 

2. Seven years is usual period— While seven years is the usual period, tin's time mav be 

shortened by proof of facts which would prove a presumption of death. Pile 26254- 
399; 7657-277, J. A. C, Feb. 6, 1915: C. M. O. 10. 1915, 9. See also COMMON Law, 7; 
Line of Duty and Misconduct Construed, 21. 



468 PREVIOUS CONVICTIONS. 

PREVIOUS CONVICTIONS. 

1. Accused— Must be present when evidence of previous convictions is read. See Pre- 

vious Convictions, 19. 

2. Array— Evidence of previous convictions by courts-martial while serving an enlist- 

ment in the Army is not admissible as evidence of previous convictions before naval 
courts-martial (C. M. 0. 17, 1910, p. G.) C. M. O. 29, 1914, 5. 

3. Same— The "accused objected to the reading of the evidence of previous convictions 

for the reason that they had no bearing on the present case." The court was cleared 
and when opened the '"president announced that the reasons given by the accused 
in objecting to the introduction of the evidence of previous convictions were not con- 
sidered by the court to be valid, and unless the accused presented some valid objec- 
tion, and still persisted in his objection on the grounds given, the evidence of previous 
convictions would be introduced over his objection in the regular manner." The 
accused was thus given every opportunity to make further objection and as none 
was forthcoming the record of previous convictions was introduced. The evidence 
of previous convictions objected to by the accused consisted of a naval general court- 
martial, a naval summary court-martial, and an Army summary court-martial while 
serving temporarily with the Army at Vera Cruz, Mexico. 

Subject to the regulations governing evidence of previous convictions such con- 
victions by Army courts under Army Regulations should be regarded as previous 
convictions in cases of enlisted men of the Marine Corps who have served temporari' v 
with the Army. (File 5945-24, Oct. 17, 1907.) C. M. O. 36, 1914, 8. 

4. Certified copies— Of extracts of previous convictions must be appended to record. 

C. M. O. 28, 1910, 4. 

5. Clerical error— It was noticed by the department that evidence of previous convic- 

tions was in the hands of the judge advocate, but the record showed no entry as to 
it being introduced. Upon inquiry it was ascertained that such evidence had 
been introduced properly but through a clerical error tne entries had been omitted 
from the record. C M. O. 55, 1910, 9. 

6. Commanding officers — "Are enjoined to exercise care to insure that the provisions 

of Article 1832(2) [Navy Regulations, 1913, R-624(2)] are promptly carried out in all 
cases, otherwise men whose records are bad, may, when brought to trial, properly 
object to the introduction of evidence of previous convictions." C. M. O. 6, 1909, 4. 

7. Court-martial orders— As evidence of. See Court-Martial Orders, 26-28. 

8. Current enlistment— Must relate to current enlistment, except when last enlistment 

was terminated by sentence of court-martial or by discharge as undesirable by order 
of tne department, in which cases all convictions occurring in prior enlistmen t therebv 
terminated are admissible. C. M. O. 29, 1914, 4; C. M. O. 36, 1914, 8. See also Pre- 
vious Convictions, 20. 

9. Definition— Of previous convictions is not evidence or testimony in the legal sense, 

which refers to matter tending to establish tho guilt or innocence of the accused upon 
the charge. C M. O. 29, 1914, 5. See also Previous Convictions, 19. 

A case was approved where the court permitted the record of a trial by a civil court 
as evidence of a previous conviction, but the department extended clemencv. C. 
M. O. 86, 1902. 

10. Disapproval. See Previous Convictions, 19. 

11. Extended enlistments. See Previous Convictions, 19, 20. 

12. Findings— Previous convictions are introduced after findings are readied, not before. 

C M. O. 11, 1897, 2-3. 

"It is also noted that the fact that there were or were not previous convictions was 
omitted entirely from the proceedings, which is contrary to the authorized procedure. 
C. M. O. 36, 1905, 3. 

13. Same— No evidence, except evidence of previous convictions, shall be admitted after 

the court arrives at its finding. C. M. 0. 15, 1910, 12. See also Evidence, 15. 

1 1. Improperly introduced— The jud?e advocate introduced and the court received evi- 
dence of previous conviction which was clearly inadmissible. As the introduction 
of this evidence of previous conviction may have influenced the court in determining 
the sentence adjudged tnecourt was ordered to reconvene for the purpose of reconsider- 
ing the sentence, excluding during such reconsideration the above-mentioned evi- 
dence of previous conviction. C. M. 0. 17, 1910, 6. 

15. Indorsement on a letter— The judge advocate introduced in evidence for the purpose 
of showing previous conviction of tne accused, an indorsement of The Adjutant Gen- 
eral of the Army, upon a letter of the Adjutant and Inspector of the Marine Corps. 
This procedure was improper, as such writing is not competent evidence to prove 
previous conviction. C. M. O. 47, 1910, 4. 



PREVIOUS CONVICTIONS. 469 

16. Judge advocate — If the judge advocate has notice of the existence of proper evidence 

of previous convictions, he should obtain same and introduce it. C. M. O. 47, 1910, 9; 
14, 1910, 9; 15, 1910, 9; 1912, 4. 

17. Same — If the judge advocate has in his possession proper evidence of previous con- 

victions he should not fail , either f rom carelessness or any other reason , to introduce 
it before thecourt. C. M. . 42, 1909, 3; 47, 1910, 8; 15, 1910, 9; 21 , 1910, 13. 

18. Judicial notice— Courts-martial may take judicial notice of court-martial orders con- 

taining evidence of previous convictions. See Court-Martial Orders, 26-28. 

19. Nature and admissibility of— Prior to October 4, 1910, evidence of previous convic- 

tions, relating to an enlistment from which the accused had been discharged as unde- 
sirable, was not admissible; but a change in the Navy Regulations under that date 
made such evidence admissible. 

In order to be admissible, evidence of previou s convictions must relate to the current 
enlistment of the accused (Navy Regulations, 1913, R-617 (3); R-804 (2;; Forms of 
Procedure, 1910, p. 41; C. M. O. 14, 1910, p. 8; 17, 1910, p. 6) except in cases where the 
accused has been previously discharged from the service through sentence of a court- 
martial (Navy Regulations, 1913, R-804 (2); Forms of Procedure, 1910, p. 41; C. M. O. 
14, 1910, p. 8; 17, 1910, p. 6; 28, 1913, p. 4) or by order of the department as xmdesirable 
(Navy Regulations, 1913, R-8C4 (2); C. M. O. 28, 1913, p. 4, overruling C. M. O. 14, 
1910, pn. 8-9; 17, 1910, p. 6, both of these orders antedating Oct. 4, 1910). [For modi- 
fication of the foregoing see Previous Convictions, 8, 20.] 

The exception in which evidence of previous convictions is admissible "Where 
the accused has been previously discharged from the service through sentence of a 
court-martial" includes evidence of previous convictions oceuring during such en- 
listment as well as evidence of the conviction by which the accused was discharged 
therefrom (File 2W04-214). 

In the cases of men who have extended their enlistments, convictions occurring 
prior to the expiration of the four year term of enlistment or prior to the current 
extension of such enlistment, shall not be considered as having occurred during their 
current enlistment. 

It is further required that, in order to be admissible, the evidence of previous con- 
victions must refer to actual trials and convictions that have been approved by the 
authorities whose action is requisite to give full effect to the sentence (Navy Regu- 
lations, 1913, R-617 (3); R-804 (2); Forms of Procedure, 1910, p. 41) except in cases 
upon which action has been withheld and the accused placed on probation (Naw 
Regulations, 1913, R-804 (2); Forms of Procedure, 1910, p. 41). [See Previous Con- 
victions, 20.] 

Where the accused has previously been tried and found guilty and such finding 
has been approved, evidence thereof is admissible as a previous conviction although 
the sentence of the court may have been remitted in whole or in part (File 26806-117, 
Apr. 21, 1914). 

When the finding and sentence have been disapproved by the proper reviewing 
authority this is not admissible as a previous conviction on a subsequent trial (Naw 
Regulations, 1913, R-617 (3); C. M. O. 54, 1899; 35, 1900; 146, 1901; 34, 1903; 106, 
1903, 4; 31, 1910, 4). 

Evidence of previous convictions by courts-martial while serving an enlistment 
in the Army is not admissible as evidence of previous convictions before naval courts- 
martial (C. M. 0. 17, 1910, p. 6). 

In cases in which the accused has first been found not guilty by the court, but in 
revision the court revokes this finding and substitutes therefor a finding of guilty, 
evidence of previous convictions may be introduced during the proceedings hi revi- 
sion; such "evidence" of previous convictions not being evidence or testimonv in 
the legal sense, which refers to matter tending to establish the guilt or innocence 
of the accused upon the charge rather than to matter introduced after the trial has 
been finished, for the sole purpose of being considered by the court in arriving a I its 
sentence. (G. C. M. Rec. 2S613, Feb. 20, 1914, overruling C. M. O. 42. 1909, p. 3, 21, 
1910, p. 13.) In suchcases the accused must of course be present when the evidence 
of previous convictions is introduced. C. M. O. 29, 1914, 4-5. See also Evidence. 15. 

20. Same— Evidence of previous convictions must refer to actual trials and convictions 

that have been approved by the authorities whose action is requisite to give full 
effect to the sentence, except in cases upon which action has been withheld and the 
accused placed on probation. Evidence of previous convictions must relate to the 
current enlistment of the accused, except when the last enlistment was terminated 
by sentenceofcourt-martial or by discharge as undesirable by order of the department. 



470 PREVIOUS CONVICTIONS. 

in which cases all convictions occurring in the prior enlistment therebv terminated 
are admissible. In the cases of men serving under extended enlistments, convictions 
occurring prior to the expiration of the four-year term of enlistment, or prior to the 
current extension of such enlistment, shall not be considered as having occurred 
during their current enlistment. (R-617 (3): R-S04 (2)). See C. if. O. 36, 1914. S. 

21. Object— Accused must be given an opportunity to enter reasonable objection to the 

introduction of evidence of previous convictions. C. M. O. 21, 1910,' 13. See aUo 
C. M. O. 9, 190S. 7. 

22. Offense — Committed after that for which accused is on trial. File 262S7-173. 

23. Rerevision— The judge advocate neglected to introduce evidence of previous conviction 

at the proper time. The record was returned for revision with reference to the sen- 
tence and proceedings and called attention to the neglect of the judge advocate in 
not introducing the evidence of previous conviction. The court then received evi- 
dence of previous conviction introduced by the judge advocate in revision. The 
record was returned for a rerevision of the sentence and with a statement that that 
part of the proceedings referring to previous conviction should be struck out and not 
be considered in arriving at a sentence. The court in rerevision struck out that part 
of the proceedings in first revision referring to the introduction of previous conviction. 
CM. 0.42. 1909. 3. 

24. Revision— Illegal to enter in revision. C. M. O. 42. 1909, 3: 21, 1910, 13, 16. But see 

Previous Convictions. 19, for a modification of this. 

25. Sentence remitted. See Previous Convictions, 19. 

26. Sentence terminates enlistment. See Previous Convictions. 19, 20. 

27. "Set aside"— In a case where a court permitted the introduction as evidence of a 

previous conviction by a summary court-martial in which the sentence had been "set 
aside bv the Naw Department " the department held that the court erred. C. M. 6. 
34, 1903', 1. 
2S. Trials and convictions. Bee Previous Convictions, 19, 20. 

PRIMA FACEE. 

1. "Absence from station and duty after leave had expired"— Prima-facie case of 

See Absence from Station and Duty After Leave had Expired, 18. 

2. "Desertion"— Prima-facie case of. See Desertion, 102-104. 

3. Embezzlement. See Embezzlement. 24. 

4. Evidence. C. M. O. 31, 1915, 15. See aUo Desertion. 105; Fraudulent Enlistment, 

72: Service Records, 16. 

5. Fraudulent enlistment— Prima-facie case of. C. M. O. 12, 1911. 4: 10. 1913. 3. See 

also Fraudulent Enlistment, 23. 27, 71. 72. 

6. Incapacity to perform active duty — Right of officer to promotion. See Promo- 

tion. 19, 64. 97. 

7. Officers— Prima facie responsible. C. M. O. 41. 1888, 5: 128, 1905, 2. 

8. Promotion— Officers found prima facie not qualified for promotion. See Promotion, 

19. 64. 97. 

9. Theft— Prima facie case of. See Theft, 14-16. 

PRIMARY EVIDENCE. See Carbon Copies. 
PRINTER, CHIEF. See Ratlng, 2. 

PRINTING PRESS. 

1. Requisition for— A requisition for a printing press by the Boston Naval Prison was 
rejected. Although printing for navy yards is not required by law to be done at 
the Government Printing Office, it is" not considered that the cost of a press should 
properly be charged to the appropriation "Expenses of courts-martial, prisoners 
and prisons." even though the press is to be operated by prisoners, because the 
amount of printing to be done therebv for the use of the "prison itself is compara- 
tively negligible. File 12494-155, J. A. 'G., ifar. 30, 1912. 

PRISONS. 

1. Disciplinary Barracks. See Detentioners. 

2. Printing press for. See Printing Press. 



PRISONERS. 471 

PRISONERS. 

1. Absence of during trial. See Accused, 1-9. 

2. Allotments. See Allotments, 6, 7. 

3. Allowances— In general. See Allowances. 

Men discharged pursuant to this schedule (G. O. 110, Revised), except those who 
have served pursuant thereto a term of imprisonment in a naval prison on shore, will 
not be regarded as "discharged naval prisoners" within the meaning of the acts of 
February 16, 1909, sec. 13 (35 Stat. 622), and March 3, 1909 (35 Stat. 756), providing 
for allowances to prisoners on discharge. General Order No. 110 (Revised, July, 
1916,) p. 5. 

4. Awaiting trial— Status of— The department has recently received complaints from 

relatives and those interested in enlisted men on account of the fact that certain 
men awaiting trial by general court-martial while retained in the brig on a receiving 
ship were required to wear clothing on which was stamped the word "Prison," 
and that such men on first entering the brig have their hair closely clipped. 

Attention is invited to the fact that men confined in the brig of a receiving ship 
awaiting trial by general court-martial are not undergoing punishment and have 
not been sentenced to imprisonment but are merely confined pending trial and 
awaiting action thereon. It should be distinctly understood that the status of these 
men is not that of prisoners undergoing punishment, and it is contrary to the policy 
of the department to subject them to treatment which unnecessarily savors of a 
prison status. 

The department disapproves of the use of the word "Prison" on the clothing 
which is worn by men in this status and directs that if some mark is necessary to 
distinguish these men from other enlisted men for the purpose of preventing their 
escape, some inconspicuous designating mark be used instead of the word " Prison." 
The department also regards as unnecessary for the strict rules of cleanliness that 
the hair of men so confined be clipped and directs that this custom be discontinued. 

The department is not unmindful of the necessity of cleanliness and discipline at all 
times and commends the efforts of officers in charge of brigs to effect the same; at the 
same time it is not the policy of the department to impose unnecessary hardships on 
men in the above status nor to make their confinement awaiting trial punitive in its 
character. (See Navy Regulations, 1913, R-1426; R-1427 (1).) File 26251-10542, Sec. 
Navy, July 10, 1915; C. M. O. 27, 1915, 9. 

5. Civil authorities— Naval prisoners wanted by civil authorities. See Civil Authori- 

ties, 37, 38; General Order No. 121, Sept. 17, 1914, 16; Jurisdiction, 111. 

6. Civilian outfits for— Chargeable to "Pay, miscellaneous." See 27210-150, J. A. G., 

Feb. 9, 1912. 

7. Clothing allowances. See Detentioners, 2. 

8. Clothing, useless— Disposition of useless clothing. See Public Property, 1, 6. 

9. Death of. See Line of Duty and Misconduct Construed, 80, 81. 

10. Debts— Liquidation of. See File 26507-214:29, J. A. G., Feb. 25, 1916; 26287-560; 26251- 

7004:2, Sec. Navy, Mar. 31, 1913; 26287-560, Sec. Navy, Aug. 3, 1910. 

11. Dental services. See Dental Services, 1. 

12. Detentioners. See Detentioners. 

13. Disposition of effects. See Disposition of Effects, 7, 8. 

14. Employment of . See File 26288-215:2. 

15. "Enticing a prisoner to escape"— Enlisted man charged with. C. M. O. 48, 1889. 

16. Escape of prisoners from a naval prison— Court of inquiry convened to investigate 

Ct. Inq. Rec. 5025. See also File 7657-125. 

17. Escaped court-martial prisoners— Jurisdiction of civil and naval authorities over 

an escaped court-martial prisoner on parole for civil offense. See Jurisdiction, 99. 

In reply to a question as to the status of a naval prisoner who "escaped " from the 
guard after having been convicted of "Desertion'' the following replv was made: 
"In reply you are informed that the case stated in your letter is such that this de- 
partment could not with propriety express an opinion on the subject or give con- 
sideration to a person who is in the status" of the man in question. "That he is 
amenable to trial and punishment is unquestioned; and he should be advised to 
surrender himself to the nearest navy yard or marine barracks to be dealt with 
according to law." File 26516-221, J. A. G., Oct. 12, 1910. 

18. Escaping prisoner—Guard fired at escaping prisoner and killed innocent bvstander. 

See Manslaughter, 9. 



472 PRISONERS. 

19. Same — "If a prisoner or detentioner attempts to escape the sentinel shall call 'halt.' 

If the prisoner or detentioner fails to halt when the sentinel has once repeated the 
call, and if there be no other apparent means of preventing his escape, the sentinel shall 
fire upon him. A sentinel will use his firearms only in cases of attempted escape or 
mutiny, and then only after giving due warning; but when, in his judgment, the time 
has arrived to fire, or he is ordered to fire, he must aim to hit and disable the offender. ' ' 
(Manual for the Government of United States Naval Prisons and Detention Systems, 
1916, p. 19. ) See also Manslaughter, 9. 

20. General Order No. 121. See General Order No. 121, Sept. 17, 1914. 

21. Government Hospital for the Insane— Prisoners and patients at. See Govern- 

ment Hospital for the Insane. 

22. Injury to prisoner while in confinement. See Line of Duty and Misconduct 

Construed, 81. 

23. Jurisdiction— Over prisoners after discharge or expiration of enlistment. See En- 

listments, 8-11; Jurisdiction, 52, 110 

24. Letters, right to open — " Prison authorities have no right to open and inspect letters 

to or sent by prisoners or detentioners second class without the consent of such prison- 
ers or detentioners second class. They may, however, retain unopened letters until 
the prisoners or detentioners second class are released or the letters otherwise lawfullv 
disposed of." (Manual for the Government of United States Naval Prisons and 
Detention Systems, 1916, sections 62-68, pp. 36-44.) 

25. Marriage of. See Marriage, 2. 

26. Pay. See Detentioners, 2; Pay, 15, 28, 79. 

27. Probation. See General Order No. 110, July 27, 1914; Naval Instructions, 1913, 

1-4893; Probation. 

28. Process— Service of. See General Order No. 121, Sept. 17, 1914. 

29. Receipts for. See G. O. 46, Jan. 5, 1865. 

30. Restoration to duty— Does not operate as a constructive pardon. See Pardons, 47. 

31. Same— As a bar to further disciplinary proceedings. File 1493-04; 26251-8539:1. 

J. A. G., Jan. 21, 1914. See also Jeopardy, Former, 32. 

32. Specialists— Prisoners examined bv specialists. See File 26262-1625:21, Sec. Naw 

May 20, 1913. 

33. Transportation of— When distance to home is excessive the prisoner should be 

transported to place of enlistment instead of his home. 

34. Treatment and place of confinement. See Prisoners, 4; Sweat Boxes. 

35. Uniforms. See Detentioners, 2. 

36. War— Prisoners of war. See Prisoners of War. 

37. Wedding— Prisoner married while in prison. See Marriage, 2. 

38. Witnesses— M aval prisoners wanted by civil authorities as witnesses in civil courts. 

See Civil Authorities, 38; General Order No. 121, Sept. 17, 1914, 23. 

39. Same -Where the department had directed the release of a prisoner, it was subse- 

quently directed that the discharge be withheld in order that the prisoner might 
be available as a witness. File 2847-31, Sec. Navy, May 12, 1908. 

PRISONERS OF WAR. 

1. Treatment and internment— Of belligerents bv neutrals. See File 28573-1, J. A. G , 
Dec. 20, 22, 1915; 28573-4, J. A. G., Dec. 23, 1915. 

PRIVATE ADMINISTRATOR. See Disposition of Effects, 2. 

PRIVATE DEBTS. 

1. Order to pay. See Debts, 17, 18. 

PRIVATE DETECTIVE AGENCY. 

1. Reward for deserters— Payment to. See Rewards, 11, 12. 

PRIVATE LITIGATION. See also Civil Courts. 

1. Board of inquest— Copy of record requested. See Boards of Inquest, 6. 

2. Debts— Of officers. See Messes. 

3. Divorce. See Civil Courts, 7. 

4. Officers— Government will not compel officers to testifv in private litigation. See 

Witnesses, 89. 

5. Promotion— Litigation pending in civil courts— Procedure of a Marine Examining 

Board. See Marine Examining Boards, 3. 

6. Wife— Support of. See Civil Courts, 7. 

7. Witnesses. See General Order No. 121, Sept. 17, 1914, 15, 23. 



PEIZE MONEY. 473 

PRIVATE REPRIMANDS. 

1. Nature of— A letter of reprimand to an officer, although necessarily seen by several 

persons before reaching its destination, is nevertheless a "private^' reprimand, and 
not public. File 26251-2993, J. A. G., Mar. 10, 1910. See also Libel, 1. 

A private reprimand is executed by addressing a letter to the officer concerned 
through the usual official channels. File 26251-2993, J. A. G., Mar. 10, 1910, p. 8. 

2. Plea in bar — Private reorimand not good grounds on which to base a plea in bar of 

trial. C. M. O. 28, 1907, 3. See also Jeopardy, Former, 23, 25. 

3. Same — A private reprimand, administered by the commander in chief of a fleet to a 

naval officer in accordance with the recommendation of a court of inquiry, as a 
punishment for an offense, such as neglect of duty, is no bar to a subsequent trial 
of such officer by general court-martial for tne same offense. (25 Op. Atty. Gen., 623.) 
C. M. O. 7, 1914, 6. See also Jeopardy, Former, 23. 

PRIVILEGE. 

1. Attorney and client. See C. M. O. 5, 1917; Privilege, 2, 3; Wife, 13. 

2. Attorney in fact — Letters from a person to his attorney in fact do not come within 

theclass of privileged communications. File 26251-12159, Sec. Navy, Dec. 9, 1916, p. 8. 

3. Letter written by officer to attorney — A communication was addressed by a naval 

officer to his agent or attorney in fact containing libelous statements concerning his 
superior officer; the agent thereafter employed an attorney at law and gave him, 
among other papers, the original of said libelous communication; this libelous com- 
munication was forwarded by the attorney at law to the Secretary of the Navy as 
part of a report made by him to the Navy Department in behalf of the writer of said 
communication against the officer libeled; the attorney at law contends that said 
libelous communication was privileged, was negligently sent by him to the Navy 
Department contrary to his authority and without the actual or implied consent of 
the writer thereof, and that accordingly said libelous communication can not be 
used in evidence against the officer by whom it was written. Held: The letter is not 
privileged and mav be used as evidence against the writer. (See 40 Cyc. 2377 ; Pear- 
son v. State, 56 Tex. Cr. 607, 120 S. W. 1004; 5 Cyc. 708; 38 Cvc. 295; Sec. 856 Penal 
Code of N. Y.; People v. Loveless, 84 N. Y. Sup. 1114; People v. Wickes, 98 N. Y. 
Sup. 163; 40 Cvc. 2365, citmg Turner v. Turner, 123 Ga. 5, 50 S. E. 969; Collins v. John- 
son, 16 Ga. 458; Phoebus v. Webster, 40 Misc. (N. Y.) 528, 82 N. Y. Sup. 868; 25 Cyc. 
367; 25 Cvc. 570; 25 Cyc. 572; 25 Cvc. 581; State v. Shaffner, 44 Atl. 620, 621; Swindle v. 
State, 10'Tenn. 581, 582; Mankms*». State, 41 Tex. Cr. R. 662; Haase v. State, 53 N. J. 
Law, 34; Brungger v. State, 49 Fed. Rep. 124; Collins v. Hoffman, 26 Ann. Cas. 13; 
Greenleaf, sees. 237, 239; Wigmore, sec. 2286, 2300; Rice on Evidence, p. 651; Best on 
Evidence, sec. 581; 23 A. & E. Encycl. of L. 56, 58, 60; Lifschitz v. O'Brien, 127 N. Y. 
Supp. 1091, 1092; Conn. Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Blackburn r. 
Crawfords, 13 Wall. 175; Glover v. Patten, 165 U. S. 394; Stone v. Minter, 50 L. R. A. 
359; Federal Criminal Code, section 146, 35 Stat., 1114; File 26251-29933, J. A. G., Mar. 
10, 1910.) File 26251-12158-12159, J. A. G., August, 1916; C. M. O. 5, 1917. 

4. Self-incrimination. See Self-incrimination. 

5. State secrets. See Evidence, 82. 

6. Wife. See Wife, 8, 11-13. 

PRIZE COURTS. 

1. Advance bases— Treatment of neutrai merchant ships seized as prizes by belligerents 

and taken to an advance base where prize proceedings cannot be had and it may be 
impossible for military reasons to send such vessels to another port. File 28573-13:18. 
J. A. G., Nov. 18, 1916. 

2. Belligerent rights over vessels— Awaiting action of prize court. File 28573-13:18 

J A. G., Nov. 18, 1916. 

PRIZE FIGHTING. See Manslaughter, 13. 

PRIZE MONEY. 

1. Prohibited in Navy— Allowance of prize money to persons in tho Navy is prohibited 

File 27601-116:2, J. A. G., May 17, 1915; 27673-342, J. A. G., Dec. 23,' 1915. See also 
Salvage, 2; An. Rep. J. A. G., 1900, p. 5. 

2. Sentence of general court-martial— An acting muster's mate was sentenced among 

other things to lose "all prize money and pav that mav become due him." ti. 
46, Jan. 5, 1865. 
3. Spanish War. See An. Rep. J. A. G., 1898, pp. 11-12; An. Rep. J. A. G . 1899 D 
8; File 4853; 9520-02. ' l 



474 PROFESSORS OF MATHEMATICS. 

PROBATION. 

1. Additional punishment— For misconduct during probation. C. M. O. 21, 1910, 

11-12; G. C. M. Rec. 23368; General Order No. 110, July 27, 1914, 16. 

2. Clemency — Accused placed on probation because of a recommendation to clemency 

by the members of a court-martial. See Clemency, 44, 64, 65. 

3. Convening authority— Action of convening authority regarding probation. See 

Convening Authority, 46. 

4. Department— Accused placed on probation by department. C. M. O. 42, 1909, 9. 

5. Desertion— Accused convicted of "Desertion," placed on probation— Pay status of 

C. M. O. 16, 1912, 4. 

6. Same -Accused placed on probation and deserted. C. M. O. 42, 1909, 9. 

7. Detentioners. See Detentioners. 

8. G. 0. 110. See General Order No. 110, July 27, 1914. 

9. 1-4893. See Naval Instructions, 1913, 1-4893. 

10. Officers— Procedure to place an officer on probation who has been sentenced to dis- 

missal. The case should be laid before the President with the recommendation that 
the officer be placed on probation. File 26251-5882, J. A. G., Apr. 17, 1912. See 
C. M. O. 33, 1911, where this was done. See also Dismissal, 18, 19. 

11. Same— Sentenced to dismissal, placed on probation. See Dismissal, 19; President 

op the United States, 8-11. 

12. Same -Officers placed on probation. C. M. O. 33, 1911; 20, 1912, 4. 

13. Pay of probationers. C. M. O. 16. 1912, 4. See also Pay, 15; Probation, 14. 

14 Prisoners— Under section 9 of the act, Feb. 16, 1909 (35 Stat., 621), the Secretary of 
the Navy is authorized to suspend the sentences of courts-martial and restore prison- 
ers to duty on probation, and during such period the probationers are entitled to 
receive the full pay of their respective ratings. (Comp. Dec., Nov. 2, 1910; 17 Comp. 
Dec. 311.) See File 26254-529. 

15. Same— Restored to duty on probation. C. M. O. 6, 1915, 11. See also Convening 

Atttt-fotjitv *it * 

16. Procedure— In different offenses. See File 26504-108, J. A. G., Apr. 6, 1911. 

17. Reports. See C. M. O. 47, 1910, 10; 1510, 4; 17, 1910, 5, 12; 21, 1910, 12; 21, 1912, 3, 4. 

18. Secretary of the Navy— Is the only convening authority with power to place accused 

on probation. See Convening Authority, 46. But see General Order No. 110, 
July 27, 1914; Naval Instructions, 1913, 1-4893; Manual for the Government of 
United States Naval Prisons and Detention Systems,l916, Sec. 12. 

19. Status of probationers. C. M. 0. 16, 1912, 4. 

20. Warrant officers— Placed on probation. C. M. O. 48, 1914. 

PROCEEDINGS NOT PREJUDICIAL TO ACCUSED'S INTERESTS. See Frror 
Without Injury. 

PROCESS. See Civil Authorities; General Order No. 121, Sept. 17, 1914. 

PROCLAMATIONS. 

1. Judicial Notice. See Statutes, 10. 

PROCURING STORES, ARTICLES, AND SUPPLIES FOR, AND DISPOSING 
THEREOF TO, ENLISTED MEN AT A NAVAL STATION, FOR HIS OWN 
ACCOUNT AND BENEFIT. 

1. Enlisted man— Charged with. File 26251-12358. 

PROFANE AND THREATENING LANGUAGE. 

1. Massachusetts laws. File 26251-2993:12. 

"PROFANE SWEARING," ETC. 

1. Specific intent— Not necessary. See Intent, 2. 

PROFESSORS OF MATHEMATICS. 

1. Abolished— "Hereafternofurtherappointmentsshallbemade to the Corps of Professors 

of Mathematics, and that corps shall cease to exist upon the death, resignation, or dis- 
missal of the officers now carried in that corps on the active and retired lists of the 
Navy." (Act of Aug. 29, 1916.) 

2. Advancement in rank. See File 26289-9, J. A. G., Mar. 30, 1912. 

3. Date of precedence. See File 11130-9, J. A. G., July 18, 1910. 

4. Promotion. File 11130-29, Sec. Navy, Oct. 7, 1915. 

5. Vacancy— Filling of, hv President. See File 26289-11, Sec. Navy, Dec. 17, 1912. 



PROMOTION. 475 

PR031ISES. 

1. Confessions. See Confessions, 1-4, 6, 21. 

2. Debts— Promises to pay debts. See Debts, 21, 22. 

3. Drunkenness — Promises to abstain from intoxicants. See Pledges and Promises. 

4. Reenlist. See Discharge Obtained by Fraud. 

PROMOTION. See also Appointments; Commissions; Marine Examining Boards; 
Naval Examining Boards; Promotion by Selection. 

1. Acquittal by court-martial— Examining board shall investigate facts independently. 

See Promotion, 45. 

2. Act of Aug. 29, 1916 (29 Stat. 556). See Promotion, 16-18, 85, 99, 111, 137, 138, 139, 

142, 165, 166, 186, 194-196, 213; Promotion by Selection. 

3. Acting assistant surgeons — Failure to pass may be waived. See Acting Assistant 

Surgeons, 2. 

4. Action of the President. See Promotion, 129. 

5. Action upon the record by the department— The department's province in the 

case of action upon a record of examination for promotion of officers of the Navy 
proper is to lay said record before the President "for his approval or disapproval of 
the findings," with such recommendation as it may deem proper. (See R. S. 1502.) 
File 26256-128. 

6. Same — Upon Marine Examining Boards records. See Promotion, 71, 134. 

7. Additional numbers. See Additional Numbers. 

8. Admonition — Officers promoted but admonished. See Marine Examining Boards, 2. 

9. Appointments. See Appointments. 

10. Army— Promotion in Army. See Promotion, 131, 132, 186. 

11. Auditor for the Navy Department— Jurisdiction of the auditor over matter involving 

promotion. See Auditor for the Navy Department, 5. 

12. Binding of examining board records. File 26260-3395, Sec. Navy, Mar. 17, 1916. 

13. Boards, examining. See Marine Examining Boards; Naval Examining Boards. 

14. Boards of investigation— Considered by naval examing boards. File 26260-3421, 

Sec. Navy, May 1, 1916. 

15. Boards of medical examiners. See Boards of Medical Examiners. 

16. Brigadier generals of the Marine Corps— The act of Aug. 29, 1916 (39 Stat. 609), 

provides, in part: "That brigadier generals shall be appointed from officers of the 
Marine Corps senior in rank to lieutenantcolonel: Provided, further, That the promotion 
to the grade of brigadier general of any officer now or hereafter carried as an additional 
number in the grade or with the rank of colonel shall be held to fill a vacancy in the 
grade of brigadier general: Provided, further, That in determining the officers with 
rank senior to colonel there shall be included the officer serving as major general com- 
mandant." See File 28687-7, J. A. G., Aug. 7, 1916, for date commissions should bear. 
(Commissions were dated Aug. 29, 1916.) 

17. Same — Before being promoted, the officers selected to be promoted from the grade of 

colonel to that of brigadier general in the line of the Marine Corps, are required to pass 
a physical, mental, and moral examination, such as is now prescribed by law for other 
officers of the Marine Corps. A professional examination is not required by Naval 
Instructions, 1913, 1-3662. File 26521-144:3, J. A. G., Oct. 20, 1916. 

18. Same— Two colonels on duty in Haiti and Santo Domingo were examined for promo- 

tion to the grade of brigadier general on their records. Medical officers were appointed 
in the above-mentioned countries to examine these officers physically and report the 
results of the examination by cable and in addition send in a written report. File 
26521-144:3. 

19. Burden of proof— "As to the burden of proof in cases of officers found prima facie not 

qualified for promotion in the Navy, any objection on that score would seem to be 
sufficiently answered by the authorities already considered. However, attention is 
invited to the fact that the Act of Congress approved May 5, 1892 [27 Stat. 25], pro- 
viding 'that any Chinese person or person of Chinese descent arrested under the pro- 
visions of this act, or the acts thereby extended, shall be adjudged to be unlawfully 
within the United States unless such person shall establish by affirmative proof, to 
the satisfaction of such justice, judge, or commissioner, his lawful right to remain in 
the United States,' has been repeatedly held to be constitutional (In Re Lee: In Re 
Ching Jo, 54 Fed. Rep. 334; U. S. v. Wong Hep Kon. 57 Fed . Rep. 206); and i( has been 
held that proceedings to commit a minor to a reform school upon the application of 
his father are not in the nature of a prosecution, conviction, and punishment for 
crime, within the rules governing such cases (Rule v. Ceddes, 23 App. Cas. D. C. 48), 



476 PROMOTION. 

"In the present case the law provides that no officer of the Navy shall be promoted 
to a higher grade 'until his mental, moral, and professional fitness to perform all his 
duties at sea have been established to the satisfaction of a board of examining officers 
appointed by the President' (Section 1496, 1497, R. S.). The same rule, therefore, 
applies to the officer's moral qualifications as to his mental and professional qualifi- 
cations. All alike must be 'established ' to the satisfaction of the board. The result 
of failing morally is discharge under the act of [August 5] 1882 [22 Stat. 286]:the result 
of failing professionally is suspension from promotion or discharge under section 1505, 
R. S. [as amended by the act of March 11, 1912, 37 Stat. 73]. There is no reason for a 
distinction with respect to the burden of proof as to the method of determining the 
candidate's moral and his professional qualifications, even if such a distinction were 
possible under the law. 

"Much might be said regarding the deplorable results which must follow from a 
construction of the law requiring that an officer's unfitness for promotion be proved 
by the Government beyond a reasonable doubt. However, such a construction 
would so obviouslv not 'promote the efficiencv of the Navv' that comment thereon 
is not deemed necessary." File 26260-1392, 26260-697, J. A. G., June 29, 1911, pp. 
31-33. 

The laws relating to examinations prior to promotion are not in the affirmative 
providing that all officers of the Navy under certain conditions shall be examined for 
promotion, but are in the negative, viz: that "No officer shall be promoted to a 
higher grade on the active list of the Navy * * * until he has been examined by a 
board of naval surgeons and pronounced physically qualified to perform all his duties 
at sea (1493 R. S.). " Similar provisions are made with reference to professional exami- 
nation (1496 R. S.). File 27231-63, J. A. G., May 27, 1915. 

20. Same — The onus of establishing professional fitness shall be held to rest entirely upon 

the officer under examination. The mental and moral fitness of the candidate shall 
be assumed unless a doubt shall be raised on either head, in the mind of any member 
of the board, from the answers contained in any of the interrogatories or reports on 
fitness, from the general reputation of the candidate, or from other sources of evidence 
of record. It shall be held obligatory upon any member of the board to decline to 
recommend the promotion of an officer until he is satisfied of the officer's entire mental, 
moral, and professional fitness for promotion. The board, while careful not to do 
injustice to any officer regarding whom there is any doubt, shall take equal care to 
safeguard the honor and dignity of the service, recommending no officer for promotion 
as to whose fitness a doubt exists. (R-334 (10)). File 9020-03, J. A. G., Nov. 2, 1903, 
p. 8; 13 J. A. G. 139. See also Naval Examining Boakds, 11. 

21. S ame— During the examination of a Marine officer for promotion the Marine Examining 

Board had under consideration a telegram containing alleged false statements by the 
candidate. The candidate contended " that in order to prove the offense charged, it 
is necessary to show that at the time the telegram was sent he knew the statements 
therein to be false," and furthermore claimed "that the charge is not proved beyond 
a reasonable doubt, and that he should be given the benefit of such doubt. - ' 

The connection which the Board had under consideration in connection with this 
telegram was whether the candidate had the moral qualifications for promotion. 

A doubt had been raised in the minds of the members of the Board as to the candi- 
date's moral qualifications by reason of his having sent this telegram, and, under the 
provisions of Navy Regulations R-1766 (10) [Navy Regulations, 1913, R-334 (10)j it 
was incumbent upon the candidate to dispel it. To do this it was neeessarv for him 
to show, not that he did not know the telegram to be false, but that he knew, or with 
sufficient reason believed, it to be true. This he failed to do. 13 J. A. G. 140; File 
9020-03, J. A. G. Nov. 2, 1903, p. 10. 

22. Bureau chiefs. See Bureau Chiefs. 

23. Candidate as a witness. See Naval Examining Boards, 23-26. 

24. Candidate's status— "The proceedings of examining boards in cases of promotions 

can not be assimilated to criminal or court-martial proceedings, which they in no sense 
resemble, and the rules of evidence which apply to the latter are not, in general, 
applicable to the former. The candidate stands in the position of an applicant for 
an office; it is for him to show that he has the necessary qualifications, and any reason- 
able doubt that may arise out of the evidence is to be resolved, not in his favor, but 
in favor of the Government." 13 J. A. G. 141; File 9020-03, J. A. G., Nov. 2, 1903, 
p. 10. See also Naval Examining Boards, 11. 



PROMOTION. 477 

25. Challenges— Non-medical members— Candidate entered a challenge to a non-medical 

member of a marine examining board on ground that owing to their former official 
relations the member would be unable to give him "an impartial examination." 
Objection sustained. Candidate objected to member ordered to relieve above member 
on ground that he had been a member of a general court-martial which tried him two 
weeks before. Challenge sustained. Candidate made a third challenge of a member 
on ground that owing to their "relations both personal and official" he could not 
give "an impartial examination." Challenge not sustained. The board was then 
dissolved and a new board convened. File 26260-308 a, b, Sec. Navy, April 8, 
1909; 829-M, Sec. Navy, April 14, 1909. 

26. Same— All members present to consider validity of challenges. File 26260-308 (Marine 

Examining Board record). 

27. Same — Medical members — The candidate entered an objection to a medical member 

of a Marine examining board sitting as a member of the board when it resolved itself 
into a Marine retiring board. The reason assigned was that said member had formed 
and expressed an opinion on the merits of the case based on the findings of the can- 
didate's entire medical history, etc. The challenged member replied that he was 
perfectly able to make a fair report in the case and that he was open to conviction if 
any further evidence was submitted. The challenge was sustained. File 26260- 
2076:2 (Marine Examining Board record). 

28. Chief carpenter— With Civil War service. See Civil War Service, 6. 

29. Chiefs of Bureaus. See Bureau Chiefs. 

30. Civil courts. See Marine Examining Boards, 3. 

31. Civil engineers. See Appointments. 13. 

32. Commissions. See Commissions. 

33. Conditional promotion. See Promotion, 67. 

34. Congress — May stop promotion or abolish "offices" entirely. See "Office," 16; 

Appointments, 8. 

35. Same— Restoration by Congress of lost numbers. See Promotion, 155, 156. 

36. Constructive pardon— Promotion as a constructive pardon of an unexecuted sen- 

tence. See Pardons, 44. 

37. Court of inquiry record— May be considered by an examining board. 13 J. A. G. 

299; File 3468-04, J. A. G., April 21, 1904, p. 8. 

38. Court-martial— "It appears from an examination of the record that the board ap- 

parently treated the matter of the trial of the candidate by court-martial, in 1892, as 
having been finally settled by the action of the department and the President thereon, 
without examining into the bearing of the facts developed by the trial upon the 
candidate's fitness for promotion to the grade of paymaster in the Navy. The de- 
partment is of opinion that in determining the question of fitness for promotion 
this is one of the considerations that should be weighed and reported upon, on its 
merits in the mind of the board, and independently of the action of any reviewing or 
mitigating authority. In other words, neither the finding of the court-martiaron 
the one hand, nor the mitigation of its sentence on the other, is conclusive, but each is 
entitled to such consideration at the hands of the board as it sees fit to give . ' ' Decision 
of the department, dated December 8, 1897, quoted approvingly in File 3468-04, J. A. 
G., April 21, 1904, pp. 8-9; 13 J. A. G. 299-300. 

39. Same— Record of trial by general court-martial introduced in evidence by candidate. 

File 26260-308, 1909. 

40. Same— A naval examining board in a recent case found, in effect, that, "no matter what 

its [the board's] personal feelings may be," a certain candidate was morally qualified 
for promotion because the members of a court-martial had acquitted him of serious 
offenses with which he had been charged, and the board "has not the power to ques- 
tion the findings of said court." 

The finding of the naval examining board in this case was not satisfactory and was 
not accepted by the department for the reason that it withheld the ver y opinion which 
the board was ordered to express— that of the board itself— and relied instead upon 
the finding of a general court-martial, which finding in point of fact was disapprw ed 
by the convening authority. It is well settled that the fact that a case has been acted 
upon, or that no action has been taken in certain premises, does not close that port ion 
of an officer's record to which it relates in such a manner as to relieve an examining 
board from the responsibility of scrutinizing it; and, even in the event of an acquittal 
by a court-martial, an examining board st ill lias the duty cast upon it by express pro- 
visions of law to examine into the facts and outcome of such trial in order to determine 
for itself the effect, if any, that should be given thereto with reference to the officer's 
qualifications for promotion. (File 5878-97; 26260-697; 26260-1392.) 



478 PKOMOTION. 

Moreover the rinding of a court-martial, even if approved, would not be conclusive 
upon an examining board for the reason that a court-martial can not properly arrive 
at a finding of " guilty " unless the evidence establishes the guilt of the accused beyond 
a reasonable doubt; while, on the other hand, members of an examining board are not 
required to be satisfied beyond a reasonable doubt that a candidate is not qualified 
for promotion, but instead are forbidden to recommend any officer for promotion "as 
to whose fitness a doubt exists." In other words, before a court-martial every doubt 
must be resolved in favor of an accused, while before an examining board any doubts 
must be resolved against the candidate, and the existence of even a doubt as to his 
fitness requires that he be not recommended for promotion. File 26260-3342:1, Sec. 
Navy, April 7, 1916; C. M. 0. 13, 1916, 6-7. 
41. Same— "A naval examining board has authority and exercises functions as extensive 
in their nature as those exercised by courts-martial themselves, and hi its considera- 
tion of an officer's qualifications for promotion it determines for itself all questions 
arising, independently of any disciplinary action that may or could have been taken 
in the premises. (Op. of J. A. G., Dec. 4, 1897, * * * file 5878-97; Brief and 
Opinion Book No. 9, pp. 296, 316, 319; Davis v U. S., 24 C. Cls., 442.) In the case 
of * * * , the examining board treated 'as closed' certain matters brought to its 
attention for which the candidate had been tried and punished by general court- 
martial. In commenting upon this action of the board, the Judge Advocate General 
stated: 

" 'This doctrine carried to its logical conclusion, would place a man who has been 
repeatedly tried by a court-martial and adequately punished for numerous and grave 
offenses, upon the same plane before an examining board as an officer of unblemished 
record. Is it conceivable that the only cases in which the trial and conviction of an 
officer should be considered by an examining board are those in which the board is 
satisfied that he has not received adequate punishment and, if justice is to be done, 
requires to be further dealt with by having promotion denied? Assuredly not. It 
is not the function of an examining board to supplement the action of a court-martial, 
and promotion should never be withheld as a measure of punishment. This prin- 
ciple can not be too clearly enunciated. But, on the other hand, it is by no means 
repugnant to the principles of justice, and it is essential to the interests of naval disci- 
pline and the establishment and maintenance of a high standard in the service, that 
trial and conviction by court-martialshould be recognized as possible obstacles to ad- 
vancement which should be gravely weighed by examining boards. The fact that a 
case has been finally acted upon by the highest authority, or that no action whatever 
has been taken, does not close that portion of the officer's record to which it relates in 
such a manner as to relieve an examining board from the responsibility of scruti- 
nizing it. Where an officer's record is found not good, it seems to me then to become 
the especial duty of the board to make a thorough and exhaustive examination. 
It should be well understood that positions of high honor and responsibility in the 
American Navy are to be attained only by men of good character and ability, and 
that such rewards are not open to those who have been convicted of grave offenses, 
and whose record is open to serious criticism.' " File 26260-1392, 26260-697, J. A. G., 
June 29, 1911, pp. 14-15. 
-42. Same — Even where a general court-martial acquits accused, the examining board 
should consider the facts independent of such acquittal or the remarks of the conven- 
ing and reviewing authorities. See Naval Examining Boards, 15; Promotions, 45. 

43. Same— The board is in no sense a court before which the candidate is on trial for his 

misdeeds. See Naval Examining Boards, 8. 

44. Same — With reference to the authority of an examining board to consider the pro- 

ceedings of a court-martial and other facts shown by the officer's record bearing upon 
his moral fitness for promotion, a civil court stated: " The board was charged with 
the duty of examining into his mental, moral, and professional qualifications for ad- 
vancement. What better evidence could it have of these qualifications than the 
candidate 's actual career in his then grade. It was natural and proper for the board 
to look into his record. If a good officer he would proudly rely upon it and demand 
its examination as a right." File 26260-3342:1, Sec. Navy, Mar. 27, 1916, p. 2. 

45. Same— The question of an officer's amenability to trial by court-martial for acts 

affecting his moral fitness can not have any bearing upon the question now under 
consideration, for should the officer be so tried and convicted, or even acquitted, by 
court-martial, an examining board would still have the duty cast upon it by express 
provisions of law, of examining into the facts and outcome of such trial in order to 



PROMOTION. 479 

determine for itself the effect, if any, that should be given thereto with reference to 
the officer's qualifications for promotion. File 26260-697, 26260-1392, J. A. G., June 
29, 1911, p. 17; 26260-3342:1, Sec. Navy, Mar. 27, 1916, p. 2. 

46. Same— The fact that a case has been finally acted upon by the highest authority, or 

that no action whatever has been taken, does not close that portion of the officer's 
record to which it relates in such a manner as to relieve an examining board from 
the responsibility of scrutinizing it. Where an officer's record is found not good it 
seems then to become the especial duty of the board to make a thorough and ex- 
haustive examination. File 5878-97; 26260-3342:1, Sec. Navy, Mar. 27, 1916, p. 2. 

47. Same— " The contention that such cases [moral] should be disposed of by court-martial 

proceedings is based upon an utter misconception of. the causes involving moral 
unfitness, as well as the duties and powers of examining boards. In the first place, 
as the history of the service shows, moral disqualification in a vast majority of cases 
is due to a series of matters, each perhaps trivial in itself, but which, taken as a whole, 
amount to a habit sufficiently serious to disqualify an officer for promotion in the 
United States Navy." File 26260-1392, 26260-697, J. A. G., June 29, 1911, p. 14. 

48. Same— " The matter of determining an officer's moral fitness for promotion is not 

analogous to the question of determining whether or not he should be brought to trial 
by court-martial for alleged offenses. On the contrary, an examining board is re- 
quired to report the opinion of its individual members concerning the fitness of a 
candidate for promotion regardless of whether unfavorable matters upon the candi- 
date's record have been acted upon by a court-martial or not, and regardless of the 
finding reached by the court-martial, if one has been convened." File 26260-3628:1, 
J. A. G., Aug. 25, 1916. 

49. Date of promotion— Additional numbers. See Additional Numbers. 

Commissions, dating of. See Commissions, 18, 19, 40. 

50. Same— Higher rank— "The giving to officers of the higher rank from the date of the 

vacancies which are filled by their promotions is a custom which obtains in all 
branches of the service, and this custom has received the approval of Congress in 
various enactments, either expressly or by implication. Nevertheless, where the 
filling of vacancies is discretionary with the President, the commissions need not 
be made to date from the occurrence of the vacancy unless the appointing power so 
decides. (File 7151-03)." File 28687-7, J. A. G., Oct. 7, 1916. See also Commissions, 
19. 
Midshipmen. See Appointments, 11. 

51. Deafness— With reference to R. S. 1494. See Promotion, 164, 165. 

52. Deatli — An officer's "death occurred after nomination for promotion but prior to con- 

firmation by the Senate." File 28687-4:4, J. A. G., Oct. 30, 1916. 

53. Debts — Any case of repeated failure to discharge indebtedness would constitute an 

instance of moral unfitness for promotion. File 26260-1392, 26260-697, J. A. G., 
June 29, 1911, p. 11. 

54. Same— A first lieutenant of Marines was found not morally qualified for promotion 

owing to nonpayment of debts; the finding was approved by the Secretary of the 
Navy June 21, 1909, and the officer was suspended from promotion for one year. 
File 26260-988, J. A. G., Aug. 5, 1910. See also File 26260-308, 1909. 

55. Same — Indebtedness was the cause of the moralfailure of a major upon his examination 

for promotion to lieutenant colonel. File 26260-3624:3, Sec. Navy, Oct. 3, 1916. See 
also Promotion, 195. 

56. Delayed— The promotion of an officer was held up until certain defects in his manner 

of handling enlisted men, as shown by his reports of fitness, were completely eradi- 
cated. In this case the department stated: "In the opinion of the department, a 
dictatorial and an unnecessary severe maimer in handling enlisted men is one of the 
most serious defects that can be possessed by an officer. An officer is necessarily 
charged with much authority, and the abuse thereof, more than any other one feature 
in an officer's character, is conclusive as to his mint ness for the trust imposed in him. " 
File 26260-2879:1, Sec. Navy, Nov. 3, 1915; C M. O. 42, 1915, 11. 

57. Same — The following authority was granted in the case of an acting pay clerk: 

"Authority is hereby granted to delay making final report and recommendation in 
the case of Acting Pay Clerk * * *' , pending receipt of special monthly reports 
in regard to his efficiency, and his habits and conduct, and especially in regard to 
his faults as noted in his reports on fitness, viz: 'lack of painstaking care and thor- 
oughness, and insubordination and criticism of his seniors.' which will be required 
of his commanding officer." File 26260-3403, Sec. Navy, July 5, 1916. 

50756°— 17 31 



480 PROMOTION. 

58. Same— An officer of the Navy having been held up for six months in order that the 

Secretary of the Navy might receive six monthly reports from the candidate's com- 
manding officer, these reports turned out unfavorable and the department held: 
That "irritability and hastiness, especially with enlisted men, and indolence, are 
the most serious defects that can be possessed by" a young officer. Action was ac- 
cordingly suspended in the case for six months and special monthly reports required 
of the candidate's commanding officer in regard to the above-mentioned defects. 
File 26260-3146, Sec. Navy, Apr. 15, 1916. 

59. Same — A Naval Examining Board was authorized "to delay making its decision and 

report in the case of Passed Assistant Paymaster * * * for the period of one year, 
lie will be retained on board the U . S . S . * * * and special quarterly reports will 
be required of his commanding officer during said period in regard to his efficiency, 
and his habits and conduct." File 26260-3319:2, Sec. Navy, May 11, 1916. 

An officer, due for promotion, may be kept in his present rank for a year to see 
whether or not he keeps sober. File 3849-02, J. A. G., June 6, 1902; 20 J. A. G., 290. 

60. Dental Corps— Scope of examination. File 13707-53. See also Dental Surgeons, 5. 

61. Divorce. See Marine Examining Boards, 3. 

62. Domestic trouble. See Marine Examining Boards, 3. 

63. Drunkenness. See Promotion, 78, 97. 

64. '* Due process of law " — " The discharge of an officer under the act of [August 5], 1882 

[22 Stat. 286] is by no means a summary proceeding. His case is heard by a board 
constituted in accordance with express provisions of law and sworn to 'honestly and 
impartially examine and report upon the case of * * * , now before the board 
and about to be examined;' all matters considered by the board, whether affecting 
the officer's physical, mental, moral, or professional qualifications for promotion, are 
entered of record; the candidate, if his record shows him prima facie unfit for promo- 
tion, is so informed by the board and given an opportunity to be heard; the findings 
and recommendation" of the board are expressly stated in all cases to be based upon 
matters recorded, and are so referred to the department and the President for review. 
"If the constitutional provision relating to due process of law applied to this case 
[officer discharged from the Navy for failing morally to qualify for promotion], there- 
fore, it would be more than satisfied by the procedure established. (See In Re Sin?, 
54 Fed. Rep. 336; Turner v. Williams, 194 U. S. 289, 290; Murray v. Hoboken Land 
Company, 18 How. 274.)" File 26260-1392, 28260-697, J. A. G., June 29, 1911, p. 31. 
See also "Office," 16. 

65. Evidence — Record of a naval examining board as evidence before naval courts-martial. 

G. C. M. Rec. 28681, p. 52. See also Naval Examining Boards, 12. 

66. Same — Rules of evidence. See Promotion, 24. 

67. Exigencies of the service of a Marine officer preventing his examination for 

promotion at the time prescribed by la w— The Attorney General has held ( 25 Op . 
Atty. Gen. 577) that the pro visions of the act of February 2, 1901 (31 Stat. 755) author- 
izes the President to promote a Marine officer who may, through the exigencies of his 
service, not be able to obtain his examination at the time he is entitled to promotion. 
His promotion is however subject to examination, and there is the further stipulation 
that if the officer who is thus promoted, fails in his examination he shall be treated in 
the same manner as if be had been examined prior to promotion. This conditional 
promotion by the President does not entitle the officer to a new commission, or to 
the increased pay of the higher rank, but merely authorizes the President when a 
vacancy occurs, to promote the absent officer who is thus enabled to retain his posi- 
tion on the Navy Register, without loss of precedence. This gives the officer the 
benefit of the presumption that when the opportunity for his examination arrives he 
will successfully pass it. A courtesy, a convenience, and practically a military neces- 
sity. But when he fails, the law says he shall be treated in the same manner as if 
he had been examined prior to promotion. File 26260-308/D, J. A. G., June 4, 1909. 

68. Same— Section 32 of the act of February 2, 1901 (31 Stat. 748, 755) made applicable to 

the Marine Corps by the act of July 28, 1892 (27 Stat. 321), extends at most to the cases 
of officers who are prevented by any exigency of their sendee from appearing before 
an examining board, and is not for the benefit of officers who have appeared before 
such board but have been unable to pass the required examination. In other words 
this law does not contemplate cases where promotion is delayed as the result of an 
examination, but instead refers to cases where the examination itself is delayed as the 
result of anoxjgencv of the officer's service. File 26521-94, Sec. Navy, Mar. 6, 1914. 
See also File 26521-108:2, J. A. G., Dec. 21, 191 1; 20260-2504, Sec. Navy, Aug. 18, 1914. 
p. 5; 26521-125, Sec. Navy, Aug. 31, 1915. 



PROMOTION. 481 

69. Existing grade— No fact which occurred prior to the last examination shall be again 

inquired into. See Promotion, 125-127. 

70. Extra numbers. See Additional Numbers. 

71. Findings — The law does not empower the department to modify the finding or to sub- 

stitute a different one, and when this power of approval or disapproval, in the case of 
a marine examining board, has been finally fully exercised by the Secretary of the 
Navy, it is exhausted as to that case. File 26260-3624:2, Sec. Navy, Sept. 29, 1916. 

72. General efficiency ol marine officers— A marine examining board made the fol- 

lowing report: " The board is of the opinion that * * * has the physical and pro- 
fessional qualifications, but has not the general efficiency to perform the duties of the 
grade to which he will be eligible, and does not, therefore, recommend his promotion 
thereto * * *." The department returned the record to the board quoting 
Naval Instructions, 1913, 1-3669, and stating that this article requires that officers 
below the grade of major shall be examined in the following order: (a) Mental and 
physical; (b) moral; (c) professional, and that the report shall show under which of 
these heads the candidate's qualifications are considered satisfactory, and under 
which, if any, they are unsatisfactory. The act of June 3, 1916, requires that a pro- 
fessional examination is required for major. As "general efficiency" is shown in 
1-3674 (11) to be a part of the professional examination, if the board should find the 
candidate not qualified for promotion on account of general efficiency, it follows that 
he has failed professionally. The department, therefore, holds that the report, with 
facts given, should state that the candidate has been found mentally, and physically, 
and morally, but not professionally qualified, in view of his being unsatisfactory in 
"general efficiency." File 26260-3624, Sec. Navy, Aug. 15, 1916. 

In revision the board decided to revoke its former finding and to substitute therefor 
the following finding: "The board is of the opinion that * * * has the mental 
and physical, but not the professional nor moral qualifications, to perform the duties 
of the next grade to which he will be eligible, and does not, therefore, recommend his 
promotion thereto." See also File 26260-3919, Sec. Navy, Nov. 2, 1916. 

73. Grade — Promotion in rank but not in grade — Not necessary that a commission be 

issued and the letter of notification "is in lieu thereof." File 28G87-10, Dec, 1916. 
See also Commissions, 9. 

74. Grades limited in number by law. See Marine Corps, 66; Promotion, 109. 

75. Held up. See Promotion, 56-59. 

76. Illegal promotions. See Commissions, 20. 

77. Incapacitated for active duty— Due for promotion but incapacitated for active duty. 

C. M. O. 6, 1915,16. See also Retirement op Officers, 33. 

78. Intemperance — With reference to moral qualifications. See Memo., J. A. G., No. 1„ 

p. 43, Dec. 6, 1884. See also R. S. 1494; 23 Op. Atty. Gen. 324; Promotion, 97. 

79. Law — Allpersons are required by law to pass physical, mental, and professional exami- 

nations prior to appointment to any office in the Navy. File 5460-10, J. A. G., Jan. 
22, 1913. 

Questions of law should be referred to the Judge Advocate General. See Marine 
Examining Boards, 12. 

For statutes relating to the promotion of marine officers. See Promotion, 84, 186. 

For statutes relating to the promotion of officers of the Navy. See Promotion, 19, 
64, 94, 95, 102, 111, 123, 125-127, 152, 160-164, 172, 183, 190, 199, 200, 207. 

80. Legal right— An officer has not a legal right to be ordered before a board of medical 

examiners for promotion instead of being ordered before a retiring board, etc. See 
Retirement of Officers, 33. See also Boards of Medical Examiners, 6. 

81. Loss of numbers— Effect upon an officer not promoted to fill a vacancy. See Pro- 

motion, 102. 

82. Same — A sentence involving loss of numbers was mitigated because approval of com- 

plete sentence would cause a delay in promotion. C. M. O. 5, 1915, 2. 

83. Major General Commandant — Where a colonel serving a four-year detail as major 

general commandant under the provisions of the act of December 19, 1913 (38 Stat, 
241), was promoted to fill one of the original vacancies in the grade of brigadier general 
created by the act of August 29, 1916, he became an additional number in the grade of 
brigadier general as provided in the act of December 19, 1913 (38 Stat. 211). thus per- 
mitting the appointmentof four other colonels to the four vacancies created by the act 
of August 29, 1916 (39 Stat. 609). Upon retiring from the position of major general 



482 PROMOTION. 

commandant he would continue to be an additional number, ceasing to be as soon 
as the grade of brigadier general is reduced to the number authorized by law. File 
28687-1, J. A. G., August 18, 1916. 

84. Marine officers— Admonition— Officer promoted but admonished. See Marine 

Examining Boaeds, 2. 

An officer qualified for promotion— The department approved this record and 
addressed a letter to him calling his attention to adverse matter on same and caution- 
ing him to continue his good record of the past four years since his trial by general 
court-martial for "drunkenness." File 26260-3664:1, 'Sec. Navy, Sept. 13, 1916. 

Brigadier general — Examination of colonels for brigadier general. See Peomotion, 
16-18,83. 

Challenges— Members challenged. See Peomotion, 25-27. 

Civil courts— Examination of an officer when a suit for divorce is pending. See 
Mabine Examining Boaeds, 3. 

Delay of examination — Due to the exigencies of the service of the officer. See Peo- 
motion, 67, 68, 85. 

Divorce. See Marine Examining Boards, 3. 

Domestic troubles. See Marine Examining Boards, 3. 

Examinations for promotion subsequent to March 3, 1899. See File 6-199: 3056-99; 
6418-00; 6779-00; 7037-00; 7123:3. 

Exigencies of the service — Of an officer preventing his examination. See Promo- 
tion, 67, 68, 85. 

General efficiency. See Promotion, 72. 

Majors and lieutenant colonels — Section 24 of the act of June 3, 1916, applies to the 
examination for promotion of officers of the Marine Corps of the rank of major and 
lieutenant colonel, by virtue of the act of July 28, 1892 (27 Stat. 321). File 26521-144, 
Sec. Navy, June 24, 1916. 

Major general commandant. See Promotion, 83. 

Mental qualifications. See Promotion, 86. 

Moral and professional failure. See Promotion, 195. 

Moral qualifications. See Promotion, 19-21, 94-98. 

Numbers, loss of— By suspension from promotion. See Promotion, 194-198. 

Physical examination. See Promotion, 120, 121. 

Prior to existence of vacancy. See Peomotion, 131. 

Procedure— -Of a marine examining board. See Peomotion, 134. 

Professional failure. See Promotion, 137-139. 

Professional and moral failure. See Promotion, 195. 

Reexamination. See Promotion, 148. 

Restoration of numbers — Lost by suspension from promotion. See Promotion, 155. 

Retiring boards— Marine exam in in g board resolving itself into a marine retiring 
board. See Promotion, 27, 85, 86, 165. 

Revised Statutes, 1494. See Promotion, 160-166. 

Staff officers. See Promotion, 180, 181. 

Summary of laws relating to. See 14 J. A. G. 131; File 26260-153b, J. A. G., June 4, 
1909. 

Suspension from promotion. See Promotion. 194-198. 

85. Same — The candidate (a captain) was examined for promotion to the grade of major 

but failed physically. The act of August 29, 1916 (39 Stat. 609) made him number 
one on the list of majors. On September IS, 1916, a major was suspended from pro- 
motion which left a vacancy for the candidate in question in the grade of lieutenant 
colonel, if five colonels had been appointed brigadier generals. The President ap- 
proved the finding of the marine examining board which had resolved itself into 
a marine retiring board and retired the candidate in question. 

"On August 29, 1916, Captain * * * was the senior captain in the Marine 
Corps. The Naval Appropriation Act (39 Stat. 609) of that date created a number 
of original vacancies in the various grades of the Marine Corps, and had the promotions 
to fill the vacanices created by that act been made on August 29, 1916, presuming that 
all officers qualified for promotion, Captain * * * would have been promoted 
to the grade of major and would have ranked as number one in that grade. 

"The law contemplates that Marine officers be examined for promotion anterior 
to the existing of a vacancy for which they are examined (Act of Oct. 1, 1890, 26 
Stat. 562). The law has also been construed to intend that if an officer should not 
be examined at the proper time, and should later be examined for promotion to a 



PROMOTION. 483 

preexisting vacancy, he shall be treated in the same manner as if he had been exam- 
ined prior to the creation of the vacancy. (25 Op. Atty. Gen. 568-579; see also C. M. O. 
29, 1916, p. 9.) 

"Had Captain * * * been examined anterior to the creation of the vacancy 
for which he was later examined for promotion, and had the approval of the retiring 
board in his case been dated on the date the vacancy occurred. August 29, 1916 (File 
26260-1658), it is evident that the only rank to which his seniority would entitle him 
to be promoted would be the rank of major, and he would have been retired from 
August 29, 1916, with that rank. 

"To take into consideration the changed conditions which later occurred, by reason 
of the failure of Major * * * for promotion, would involve a departure from the 
rule of treating officers who are improperly examined for promotion after the vacancy 
for which they are examined occurs, in the same manner as if they had been examined 
prior to the creation of such vacancies, and I do not consider that the rule laid down 
should be departed from." Accordingly this officer is entitled to be retired with the 
rank of major and not lieutenant colonel, and it is unnecessary to consider the bearing 
upon the question of the fact that the grade of lieutenant colonel was fully occupied 
at the time of this officer's retirement. File 26260-3604:2, J. A. G., Oct. 16, 1916. 

86. Mental qualification of a marine officer—' ' The medical members having found that 

the candidate is physically but not mentally qualified for promotion, and this finding 
being concurred in by the full board, the board, then, in accordance with the law, 
resolved itself into a retiring board," etc. The board after maturely deliberating 
upon the evidence in the case decided that the candidate "is not mentally qualified 
to perform all the duties of the next higher grade, in the Marine Corps, by reason of 
nervous debility, and that said disability is the result of an incident of the service." 
He was accordingly placed on the retired list in accordance with the act of October 1, 
1890 (26 Stat. 562) and the act of July 28, 1892 (27 Stat. 321). File 2011-3, J. A.G., 
July 12, 1906, approved by President, July 16, 1906. See also Promotion, 150, 151. 

87. Midshipmen— Promotion of midshipmen when deficient. See Midshipmen, 72. 

Candidates for commissions in Marine Corps. See Midshipmen, 53,55. 

Promotion of midshipmen to ensigns when not recommended by the Academic Board 
of the Naval Academy. See Academic Board of the Naval Academy, 4; Appoint- 
ments, 17. 

Promotion of midshipmen when physically incapacitated. C. M. O. 6, 1915, 6. See 
also Retirement of Officers, 50. 

88. Moral qualifications— The burden of establishing moral fitness is on the candidate. 

See Promotion 19-21. 

89. Same— Court-martial— Contention that an officer should have been tried by a court- 

martial before he became eligible for promotion. See Promotion, 47. 

90. Same— Drunkenness. See Promotion, 78, 97. 

91. Same — Indebtedness as a cause for moral failure. See Promotion, 53-55. 

92. Same— Intemperance. See Promotion, 78, 97. 

93. Same— Marine examining board. See Marine Examining Boards, 14. 

94. Same — Prior to the enactment of an act of August 5, 1882 (22 Stat. 286) when an officer 

failed morally upon examination for promotion, although otherwise qualified, he was 
placed on the retired list under the first section of theactof April 21, 1864 (13 Stat. 53), 
and not recommended for promotion (2S Exam. Bd. Records, No. 34; Navy Register, 

1910, p. 174; Davis Admin, v. U. S., 24 Ct. Cls. 442). The act of August S, 1882 (22 
Stat. 286), abolished this practice. File 26260-1392, 26260-697, J. A. G., June 29, 

1911, p. 6. 

95. Same— The purpose of the act of August 5, 1882 (22 Stat. 2S6) was to abolish the practice 

of placing upon the retired list of the Navv officers who had failed to qualify for pro- 
motion by reason of moral deficiency. File 26260-1392, 26260-697, J. A. G.,' June 29, 
1911, p. 8. 

96. Same— Upon the question of what constitutes moral unfitness it need only be said that 

no specific definition thereof is desirable or should be attempted. The question of 
what constitutes moral unfitness should bo left to be determined by a board of ex- 
perienced, intelligent, impartial, military oxperts in the exercise ofa sound discretion. 
{See Swaim v. U. S., 28 Ct. Cls. 173, 228.) File 26260-1392, 26260-697. J. A. C, June 29. 
1911, pp. 10-11. 

97. Same — Where the board determines that it appenrs prima facie that the candidate is 

not morally qualified for promotion by reason of his own misconduct (or, drunken- 
ness, etc.) he should bo called beforo the board and given au opportunity io be 
heard upon the charges against him. Filo 26260-3342: 2, Sec. Navy, June 2. 1916. 



484 PKOMOTION. 

98. Same— (1) The moral fitness of the candidate shall be assumed unless a doubt shall be 

raised by evidence of record or from the general reputation of the candidate. 

(2) If the moral fitness of the candidate is not assumed, he shall be furnished full 
information as to any allegations concerning his moral conduct, names of accusers and 
witnesses, and documentary evidence against him; he shall be allowed to examine 
such witnesses and evidence and to testify and introduce evidence in his own behalf. 

(3) All proceedings during the examination as to his moral fitness, except delibera- 
tions on the findings and on interlocutory questions, shall be in the presence of the 
candidate and his counsel, (if he has counsel present). 

(4) The board shall decide concerning the officers or other persons to whom inter- 
rogatories shall be sent, and shall decide upon the scope and character of such inter- 
rogatories, but no inquiry as to matters of opinion shall be put to any officer who is 
junior in rank to the candidate. 

(5) If the candidate requests that witnesses be examined in his behalf, the board 
shall, so far as such request appears to the board to be reasonable, examine the wit- 
nesses in his presence or by taking their depositions. 

(6) The board shall not inquire into nor consider any fact which occurred prior to 
the last examination of the candidate whereby he was promoted and which has been 
inquired into and decided upon, unless such fact continuing shows his present unfit- 
ness for promotion. [See Promotion, 125-128.] 

(7) The candidate shall be given an opportunity to make a statement with reference 
to his moral fitness, which statement," if made, shall be appended to the record 
(1-3673). 

99. Moral and professional failure of a Marine officer— A major upon examination 

for promotion failed both morailv and professionally subsequent to August 29, 1916. 
File 26260-3625, Sept. 13, 1916. See also Promotion, 195. 

100. Naval Militia— Aeronautic duties— Scope of examinations for officers and enlisted men 

of the Naval Militia for aeronautic duties. See Naval Militia, 12. 

District of Columbia— Promotions of officers in the Naval Militia of the District of 
Columbia. See Naval Militia, 8. 

Judge Advocate General — Examining boards reviewed and reported upon by the 
Judge Advocate General. See Judge Advocate General, 17; Naval Militia, 12. 

Physical examination. See r\ aval Militia, 29. 

101. Naval officers should be examined prior to existence of vacancy. See Promo- 

tion, 132. 

102. Numbers, loss of— Effect upon officer not promoted to fill a vacancy— A carpenter 

was appointed a warrant officer April 19, 1907. Tried by general court-martial and 
sentenced to lose 15 numbers, which reduced him in the list of carpenters below an 
officer whose date of appointment was January 30, 1909. The question presented is 
whether the officer concerned, if otherwise qualified, is entitled to promotion under 
the act of April 27, 1904 (33 Stat. 324, 346), "after six years from date of warrant." 
Held: That this officer, whose sentence by court-martial has operated to reduce him 
below other warrant officers m his grade or a later date of appointment, is not entitled 
to promotion, even though otherwise qualified, until the officers who precede him 
in the list of carpenters have become due for promotion. File 177S9-20, J. A. G., Dec. 
18, 1913, approved by Bu. Nav. and Sec. Navy, Dec. 19, 1913. Approved by Presi- 
dent, Feb. 18, 1914. See also Bu. Nav. File 5796-52; 17789-20:1, Sec. Navy, Feb. 18, 
1914. 

103. Same— Restoration by Congress. See Promotion, 155, 156. 

104. Same — Sentence involving loss of numbers mitigated because of effect upon promotion. 

See Promotion, 82. 

105. Oath— Taken by members of a Naval Examining Board. See Promotion, 64. 

106. Objection— Challenges of members. See Promotion, 25-27. 

107. Same — Objection of candidate to certain parts of the statement of a challenged member 

overruled. File 26260-308, 1909. 

108. Occurrences since last examination by which promoted. See Promoton, 

125-128. 

109. Overfilling grades— TheappointmentofanofficeroftheNavy to a grade limited in num- 

ber by law, would not be valid if it increased the number of said grade beyond that 
allowed by law (23 Op. Atty. Gen. 30, 35). Accordingly, Held: That no promotions 
can legally be made to the grades of captain and commander while there are in each 
of said grades the full number of officers allowed by law including officers who have 
been examined for promotion but in whose cases final action has not been taken. 
(File 26521-67, J. A. G., June 4, 1913; foregoing opinion reconsidered and sustained 



PROMOTION. 485 

in File 26521-67, J. A. G., Dec. 4, 1913). File 13261-486, Sec. Navy, June 8, 1916, which 
affirmed the principle stated above, and applied it to appointments of midshipmen 
to Marine Corps as second lieutenants. See also File 942-310, Bu. Nav., Sec. Navy, 
Dec. 29, 1913; File 26521-108:2, J. A. G., Dec. 24, 1914; Marine Corps, 66. 

110. Pardon— Promotion as a constructive pardon of an unexecuted sentence. See Pardons, 

44. 

111. Partial examination— The act of August 29, 1916 (39 Stat. 578), speaks and is effective 

from its date. "Accordingly, the only examinations and promotions to the line 
grades mentioned in it which can be made subsequent to August 29, 1916, are those 
made in accordance with the specific terms of the act of that date." "It follows, 
therefore, that, in any case where an officer was undergoing examination for pro- 
motion prior to August 29, 1916, and such examination and promotion was not 
completely consummated prior to that date, the partial examination concerned, upon 
the approval of the law under consideration, therefore, 'became null and void' and 
' action at the present time, in view of this change in the law, can carry with it no legal 
consequences or penalties such as would have obtained had action been taken prior 
to the change in the law." (File 26260-3648, J. A. G., Sept. 22, 1916.) File 26260- 
3663:2, Sec. Navy, Oct. 9, 1916. See also Commissions, 42; Promotion, 129. 

112. Pay— Beginning of increase of pay. See Pay, 24, 25. 

113. Same— Increased pay for advancement in rank— The Comptroller of the Treasury has 

held that assistant paymasters advanced in rank by reason of length of service are not 
promoted to fill vacancies and therefore are not entitled to receive the increased pay 
until they get their commissions— the increased pay beginning from that date. File 
26509-4-64:1, J. A. G., April 25, 1910, p. 6. 

114. Same— Pay while holding a recess appointment. See Pay, 82. 

115. Penal statutes— The act of August 5, 1882 (22 Stat. 286) is not a penal statute. File 

5925-03, J. A. G., 1903, p. 5. 

116. Physical examination for promotion— Marine officers. See Promotion, 120, 121. 

117. Same— Naval Militia. See Naval Militia, 29. 

118. Same— Officers of the Navy. See Boards of Medical Examiners. 

119. Physical failure— On reexamination after professional failure on first examination. 

See Promotion, 148, 150-152. 

120. Physical failure but professional examination allowed— A Marine Examining 

Board found a candidate incapacitated for active service due to line of duty. On can- 
didate's own request, which was approved by the department, he was examined pro- 
fessionally. No action was taken on the record of proceedings, but the candidate 
was ordered to a naval hospital for observation and treatment and then to be 
later reexamined physically to establish his fitness for further active service. File 
26260-3459, Sec. Navy, May 27, 1916. See also File 26260-3432:1, Sec. Navy, April 
18, 1916. 

121. Physical qualifications of marine officers— The medical members of the board re- 

ported that the "candidate had the mental and physical qualifications for promotion 
except that his vision is defective." An investigation was then conducted by the 
board as to the physical qualifications of the candidate, the candidate being allowed 
to have counsel. Upon the conclusion of the investigation the board decided " by a 
majority vote of the members of the Board, not to adopt the report of the medical 
members of the Board," the medical members being present and voting. The board 
found that the candidate had the "physical, mental, moral and professional qualifica- 
tions to perform efficiently all the duties of the grade to which he will next be eligible, 
and recommend him for promotion thereto." The action of the Secretary of the Navy 
was as follows: "In view of the fact, appearing from the evidence submitted in this 
case, that Captain * * * has, for the last five years, during which his physical in- 
firmity (impaired vision) has existed in substantially its present form and degree. 
Eerformed to the entire satisfaction of Ids superior officers all the duties to which he 
as been assigned, including that of independent command and others of an arduous 
and important nature, I concur in the opinion of the Examining Board thai this 
officer has the physical, as well as the other requisite qualifications to perform 
efficiently all the duties of the grade to which he will next be eligible, viz.. that of 
Major." File 7381-03, Sec. Navy, Aug. 29, 1903. 

Sections 1493 and 1494 were made applicable to the Marine Corps bv the act of 
August 29, 1910. 

"The mental and physical fitness of the candidate [Marine Corps] and all questions 
which arise in connection therewith shall be voted upon by each member of the em ire 
board and the votes of a majority shall decide." (1-3670 (3).) 



486 PROMOTION. 

122. " Physico-mental "—Capacity to perform active service. File 3468-04. J. A. G., 

April 21, 1904, p. 11. 

123. "Plucking Board"— Act of March 3, 1S99, Section 9 (30 Stat. 1006), as amended bv 

the Act of August 22, 1912 (37 Stat. 328). Repealed by the act of March 3, 1915 (38 
Stat. 938). See Commissions, 42; Retirement of Officers, 41. 

124. *' Preparedness "—"All officers know where they stand on the list, and there should be 

some premium upon 'preparedness.' Under present laws the officer who is not 
ready sutlers; but inasmuch as the approximate date of examination can be computed 
in advance it is difficult to find a valid excuse for failure to pass professionally." 
13 J. A. G. 398, 1904. 

125. Present grade — All records of the department bearing upon the service of an officer, 

in his present grade, who is undergoing examination for promotion, may be considered 
by the examining board in arriving at its finding as to the qualifications of an officer, 
and the fact that the President disapproved the finding of a former board to the effect 
that the candidate was morally disqualified does not prevent its consideration upon 
a reexamination of the candidate. File 26521-19. 

The act of June 18, 1878 (20 Stat. 165), provides: "That hereafter in the examina- 
tion of officers in the Navy for promotion no fact which occurred prior to the last ex- 
amination of the candidate whereby he was promoted, which has been inquired into 
and decided upon, shall be again inquired into, but such previous examination, if 
approved, shall be conclusive, unless such fact continuing shows the unfitness of the 
officer to perform all his duties at sea." File 26521-27:1149, J. A. G., June 23, 1914. 
See also File 26521-169, J. A. G., Nov. 28, 1916, p. 3. 

126. Same — Occurrences which have happened since the examination by which the officer 

" was promoted ' ' should be considered by the board. Therefore, where an officer has 
been suspended from promotion on account of failure in examination, occurrences 
that happened since the last examination by which he was actually promoted, should 
be considered. File 6789-04. 

127. Same— The act of June 18, 1878, operating as a specific restriction upon the general 

provisions of section 1499, contemplates only the normal case cf the officer who re- 
mains in the service and passes successively from the lower to the higher grades after 
an examination for promotion to each grade. The Court of Claims, in the case of 
Davis, Admr., v. The United States (24 Ct. Cls. 442), in commenting upon the pro- 
visions of sections 1499, 1502, and 1503, Revised Statutes, in connection with the act 
of June 18, 1878, said: 

" Those statutes opened up the whole past life of an applicant for promotion, and 
made him liable at each step in his career to a fresh investigation, long after the event, 
of charges before 'inquired into and decided upon'. To remedy any injustice this 
mar have caused, probably, the statute of June 18, 1S78, was passed. This statute 
places a bar in the way of a new examination into old accusations or facts, and starts 
the officer in his higher grade with a clean record, unless such fact be a continuing one, 
showing the candidate's unfitness to ' perform all his duties at sea'. But the act goes 
no further; it leaves the examining board otherwise subject to the mandates of section 
1499 of the Revised Statutes, which, thus limited, authorizes an examination of the 
files and records of the Navy Department concerning the officer's career in the grade 
from which he is at the present time seeking promotion." 

"What better evidence could it have of these qualifications than the candidate's 
actual career in his then grade. It was natural and proper for the board to look into 
his record. If a good officer, he would proudly rely upon it and demand its examina- 
tion as a right. * * * It [the act of June "18, i87S] does not take away from the 
meritorious officer the right to produce his record of faithful, diligent, and gallant 
service in the rank in which at the tune he is serving, as proof of fitness for advance- 
ment to higher dignities and greater responsibilities: nor does it take away from the 
naval service the right to examine into that record for the purpose of promoting 
meritorious officers and of denying advancement to those who have failed to reach 
the standard of competencv and trustworthiness demanded from all officers in this 
dignified and honorable career." File 26521-27:1149, J. A. G., June 23, 1914. 

Sections 1496-1504 "opened up the whole past life of an applicant for promotion, 
and made him liable at each step in his career to a fresh investigation, long after the 
event, of charges before 'inquired into and decided upon'. To remedy any injustice 
this may have caused, probably, the statute of June 18, 1878 [20 Stat. 165], was passed. 
This statute places a bar in the" way of a new examination into old accusations or facts, 
and starts the officer in his higher grade with a clean record, unless the fact be a con- 
tinuing one, showing the candidate's unfitness to 'perform all his duties at sea.'" 
(Davis v. U. S., 24 Ct. Cls. 442.) File 26521-169, J. A. G., Nov. 14, 1916, p. 2. 



PROMOTION. 487 

"Not only did the act of 1878 establish a specific legislative policy with reference to 
the examination of officers for promotion, but that policy was in itself consistent and 
in entire harmony with the established doctrine of res judicata, which has always been 
of general application in the administrative as well as the judicial department of our 
Government." File 26521-169, J. A. G., Nov. 14, 1916, p. 4. 

128. Same— Promotion by selection— Question whether act of June 18, 1878 (20 Stat. 165), 

applies. See Promotion by Selection, 8. 

129. President's action— " It has been held repeatedly * * * that inasmuch as the law 

requires examination by a board and approval or disapproval by the President, that 
the President's action is just as much a part of the examination as is the examination 
by the board itself; the examination is therefore incomplete up to the time it is ap- 
proved by the President. Therefore, an examination in which the board has finished 
its part, but which has not yet been acted upon by the President, is as incomplete as 
if the actual examination before the board had not been completed." File 26260-3648, 
J. A. G., Sept. 22, 1916, citing Jouett v. U. S., (28 Ct. Cls. 257, 266). 

In the Jouett case a naval officer [master] was nominated and confirmed for promo- 
tion to lieutenant, "subject to the required examination before being commissioned." 
The commission was signed but not issued. The officer passed the required exami- 
nation and was recommended for promotion. But the President did not approve the 
report of the examining board and suspended action on it and ordered the officer to 
sea. The candidate is again examined and the second board reports that he has not 
the moral qualifications for promotion. The President approves the report and ordered 
that the officer be discharged with one year's pay. The court stated, inter alia "The 
President's approval or disapproval of the findings is, then, distinctly required, and 
it is contemplated that he shall examine the whole records and findings. Having the 
duty imposed upon him to approve or disapprove, the President had the power to 
suspend action or to seek further information; these are necessary incidents of the 
executive reviewing power. (Swaim v. The U. S., ante.) [28 Ct. Cls. 173.]" See 
also Promotion, 111. 

President approved the findings and recommendation of a Naval Examining 
Board notwithstanding the recommendation of the Judge Advocate General that 
they be disapproved. File 26260-1392:29, February, 1913. 

130. Presumption— Where an officer requested a reconsideration of the board's findings, 

which resulted in his suspension from promotion and a consequent loss of several 
numbers, on the grounds that he was ill when examined and all his reports of fitness 
were excellent, Held: That "the presumption is in favor of a board having done its 
full duty." File 26260-3314:6, Sec. Navy, Aug. 25, 1916. See also Appeals, IS; Pro- 
motion, 148. 

131. Prior to existence of vacancy— The law requires that Marine officers be examined 

for promotion prior to the existence of the vacancy for which they are examined. 
(Act of Oct. 1, 1890, 26 Stat., 562.) The law also provides that when the examina- 
tion is delayed through the exigencies of the service, if the officer fails, he shall "be 
treated in the same manner as if he had been examined prior" to the creation of the 
vacancy. (Act of Feb. 2, 1901, sec. 32, 31 Stat., 756.) Accordingly, where an 
officer, examined after the vacancy occurs, fails physically he is properly given the 
rank of the higher grade from the date of the vacancy to which he would have been 
promoted if qualified. File 26260-3237: 1, J. A. G., Aug. 25, 1915; C. M. O. 29, 1915, 9. 
See also File 26260-1514. 

132. Same — In all cases in the Navy where it is not absolutely impossible to do so, exami- 

nations for promotion should be held prior to the occurrence of the vacancy, as is 
required by express provisions of law with reference to promotions hi the Army and 
Marine Corps. (Act of Oct. 1, 1890, 26 Stat., 562, and act of Feb. 2. 1901, sec. 32, 
31 Stat., 756.) File 26260-2605:2, J. A. G., Aug. 17, 1915, p. 5; C. M. O. 29, 1915, 9. 

133. Probation— Officers placed on probation. See Promotion, 56-59. 

134. Procedure— It is the duty of a Marine Examining Board to report the facts as found. 

The next step is to lay its report, with its finding and recommendation, before the 
department, for its approval or disapproval, or if, in the department s judgment, the 
report has not been completed or the finding not justified by the facts, the record of 
proceedings would then be returned for further inquiry, or 'hearing, or correction of 
its proceedings. The law does not empower the department to modify the finding or 
to substitute a different one, and when this power of approval or disapproval has been 
finally fully exercised by the department, it is exhausted as to thai case. File 26260- 
3625. 



488 PROMOTION. 

Under the act of July 28, 1892 (27 Stat. 321), the medical members of the board 
"examine the candidate as to his physical and mental fitness for promotion and make 
a written report thereof to the entire board. The mental and physical fitness of the 
candidate, and all questions which arise in connection therewith, are then voted upon 
by each member of the entire board. This part of the examination precedes the moral 
and professional examination. When the candidate is found mentally and physically 
qualified for promotion, the medical members are excused from further attendance 
with the board." File 28687-14, J. A. G., Dec. 14, 1916. 

135. Professional — An officer of the Navy having failed professionally, was suspended from- 

promotion for six months and suffered loss of numbers. File 26260-3091:1, J. A. G., 
Nov. 3, 1915, and Nov. 19, 1915. 

136. Same — The onus or burden of establishing professional fitness is on the candidate. 

See Promotion, 19, 20, 21. 

137. Same— Prior to the approval of the act of August 29, 1916 (39 Stat. 611), Marine officers 

failing professionally were suspended from promotion for one year. File 26260-153 e, 
Sec. Navy, June 7, 1909; 26260-2201:3, See. Navy, Oct. 25, 1913; 26260-2404:1, Sec. Navy, 
Aug. 18, 1914. See also Promotion, 196. 

138. Sfame— Subsequent to the approval of the act of August 29, 1916 (39 Stat. 611), Marine 

officers failing professionally are suspended from promotion and suffer the loss of 
numbers as provided by the act of August 29, 1916 (39 Stat., 611). See Promotion, 
194, 195. 

139. Same — Where a Marine second lieutenant failed professionally subsequent to August 

29, 1916, he suffered a loss of eight numbers, and will be reexamined as soon as expe- 
dient after the expiration of six months. File 26260-3919, Sec. Navy, Nov. 14, 1916. 

140. Professional and moral failure of a Marine officer. See Promotion, 99. 

141. Promotion — "A promotion in the Army is an appointment to a higher officer therein." 

(30 Op. Atty. Gen. 177). File 28687-4:1, J. A. G., Sept. 12, 1916, p. 5. 

142. Property right— "In this state of the law [prior to Aug. 29, 1916, 39 Stat. 556], an 

officer's right to promotion, while not of course a property right, came to be regarded 
as something at least closely akin thereto, and the deprivation of this right was looked 
upon as a serious punishment." But see Promotion,, 213. See also "Office," 16. 

143. Punishment — Promotion should never be withheld as a punishment. See Pro- 

motion, 41. 

144. Reasonable doubt. File 5925-03, J. A. G., 1903, p. 5. See also Promotion, 20, 21, 

24, 98. 

Theory of Government proving candidate's unfitness for promotion beyond a 
reasonable doubt. See Promotion, 19. 

145. Recommending promotion — The members of an examining board are forbidden to 

recommend any officer for promotion as to whose fitness a doubt exists. File 26260- 
3628:1, J. A. G., August 25, 1916. See also Promotion, 20. 

146. Records of officers. See Naval Examining Boards, 11; Promotion, 125-128. 

147. Recorder and members — Failing to sign record. File 26260-3464, Sec. Navy, May 27, 

1916. 

148. Reexamination— A second lieutenant failed professionally for promotion to first 

lieutenant. At the time he was reexamined there was a vacancy awaiting him in 
the captain's grade, due to the act of August 29, 1913. (39 Stat. 609. ) Held: That this 
officer, ' ' who has been suspended from promotion to first lieutenant by reason of his 
failure to qualify professionally should be reexamined for promotion to first lieu- 
tenant and should he successfully pass such examination, he should then be examined 
for promotion to captain." File 26260-3314:5, Sec. Navy, July 21, 1916. See also 
Appeals, 18; Promotion, 130. 

149. Same — An officer who had failed physically ("not line of duty"), failed professionally 

on reexamination and was discharged with one year's pay. File 26260-2048:1, Sec. 
Navy, September 23, 1913. 

150. Same — A Marine officer was found professionally not qualified for promotion and after 

one year's suspension was found physically not qualified for promotion owing to 
disabilities in fine of duty, under section 3 of the act of October 1,1890. (26 Stat. 562.) 
Held: That he should be retired in next higher grade. File 26260-3314:7, Sec. Navy, 
November, 1916. See also File 878-4, 1903; 7331. 

151. Same — A Marine officer was found professionally not qualified for promotion and 

after one year's suspension was found physically not qualified for promotion owing 
to disabilities in line of duty. Notwithstanding this, his examination was continued 
and he was found qualified in all other respects. He was retired in next higher grade. 
File 878-4, 1903; 7331. (Udell's Case.) See also File 26260-3314:7, 1916; Promotion, 



promotion. 489 

152. Same—A machinist appeared for examination for promotion to the eradA of nhi*e 
reexamination the candidate was found mentally and morally but Sw& 
Sp n^H? 1011 Up ° n £ h ? ^^gs of the boards be withheld, and that the SaTe 

first. "The procedure upon 6o*ft the first examination and upon the reeSminatim? 

10 191?, p 4 7 arme C ° rpS - 15 J - A - G - 239; File 26260-1294, J. A. G./Jurie 

iSfr ntU^n^' * See Co mmissions, 14-16; Promotion, 127; Res Judicata, 12. 

ion? a • a " ltude toward the proposed bill." (File 26509-61, Sec Navv Nov 9 
Sie'd rn^Thf^ qUest " WaS lat f r ecei ™I from the same officer'and the Tp^rtmen^ 
™?Sf? * i P erxmssion granted you on November 9, 1911, "to take such nroner 

^^t^f^T^ 7 ln ^ PremiSeS " had not ^en revoked' Mle S 
156. Same^The department disapproved legislation proposed in behalf of a liAii+«naTi* 
&™E gr t de) t0 re P la f^ to the list in line of E? from which dSppidSffi 
ThfdP^r^J. e f°i n ° f Mling *2 5 ass P r( >motion examinations from ^SsMpman 
msled ^fh^ t p?^/ eCOm ^ ended - i ha ^' should the biil Proposed for this oS^e 

ordered up for examination for promotion to the higher °rade Tn ill »««{+{« 

«|n m & M^ 

^cKwf ?** SeC "°? 14 ?*T" Tl16 P r °«sioiis of the precedine: section shall not 
Sew. £, the P™ 1 " " 011 to which he would otherwise be resuTadv on iVll, -inv 
officer in whose case such medical board may report that bis i.l "iV , i ' ,' > 
cation was occasioned by wounds received in the'line " hi "tin v H , & , ! ', 

liTt&^gTiS, 6 , 1 "" 1 ror other dmies ia th ° Sff&JM 3 



490 PROMOTION. 

received in the line of his duty," and is not restricted to any particular part of that 
duty, as to wounds received in battle or in some hazardous enterprise. (23 Op. Atty . 
Gen. 324.) File 26260-950, Sec. Naw, July 29, 1910. See also File 26260-3432:3; Sec. 
Navy, December 13, 1916. 

The words "other duties'' in section 1494 of the Revised Statutes refer to duties 
other than duties at sea. (23 Op. Atty. Gen. 324.) File 26260-950, Sec. Navy, July 29, 
1910. See also File 26260-3432:3, Sec. Navy, December 13, 1916; 26260-2424, Sec. Navy, 
April 4, 1914. 
163 Same— Officers of the Navy have been promoted under the provisions of this section. 
File 26260-950, Sec. Navy, July 29, 1910 (loss of leg); 9346-08, Sec. Navy, Feb. 14, 1908 
(loss of leg). 

164. Same- Where an officer of the Navy claimed that a physical disqualification for which 

he was eventually retired would entitle him to promotion under R . S . 1494, the Secre- 
tary of the Navy held in part: " The department concurs in the opinion of the Judge 

Advocate General and of the Surgeon General, that Captain 's present ear 

trouble can not be attributed entirely, if at all, to the injury from gun fire said to have 
been received in 1891 or 1892, and that even if the contrary were true, such injury 
would not be a "wound" within the meaning of section 1494, R. S." File 26260-2424, 
Sec. Navy, April 2, 1914. See also File 26253-460, March 2, 1916; Promotion, 165. 

165. Revised Statutes, 1493, 1494— A second lieutenant appeared before a Marine ex- 

amining boardforpromotion. Themedicalofficersreportedthathe was not physically 
qualified for promotion. The board thereupon resolved itself into a retiring board 
and recorded the following opinion: "The board having deliberated upon the evi- 
dence before it, decided that is at present incapacitated for active service 

by reason of deafness * * * and that his incapacity is a result of an incident of the 
service and recommends that he be sent to the Naval Hospital, Mare Island, Cal., 
for observation and treatment." With the authority of the Secretary of the 
Navy, the professional examination was proceeded with. The board recorded the 
following opinion: " The board is of the opinion that ■ has the general effi- 
ciency, and the professional qualifications, but not at present the physical qualifica- 
tions to perform the duties of the next grade to which he will be eligible, and does 
not, therefore, recommend his promotion thereto." The candidate was thereupon 
ordered to the before-mentioned hospital for observation and treatment, "then to be 
reexamined physically to establish his fitness for further active service." At a later 
date he appeared before a second Marine examining board, which, after receiving 
the report of the medical members that the candidate was not physically qualified, 
resolved itself into a Marine retiring board. This board reported that the candi- 
date was still incapacitated for active service but recommended that owing to the 
fact that the deafness might not be permanent and that he can and does perform 
some duties satisfactorily, that he be continued on duty and be reexamined physic- 
ally at a later date. He was accordingly ordered to the Naval Hospital, Washington, 
D. C, for special expert observation and treatment. A third Marine examining 
board was convened. The precept stated that if the board finds that the "phys- 
ical disqualification was occasioned by wounds received in the line of his duty," the 
medical members of the aforesaid board will convene as a board of naval surgeons 
as contemplated by sections 1493 and 1494, R. S., which were made applicable to 
Marine Corps by the act of August 29, 1916. (39 Stat. 611.) File 26260-3432:3, Sec. 
Navy, Dec. 13, 1916. 

166. Same— The medical members of a marine examining board recommended that a first 

lieutenant be promoted in accordance with the provisions of section 1494 of the Re- 
vised Statutes, "wounds received in the line of his duty." The record was returned, 
with the information that section 1494 of the Revised Statutes did not apply to the 
Marine Corps. File 26260-3462, Sec. Navy, May 10, 1916. But see The act of August 
29, 1916 (39 Stat. 611), which provides that "the provisions of sections 1493 and 1494 
of the Revised Statutes of the United States shall apply to the Marine Corps." File 
28687-14, J. A. G., Dec. 14, 1916, p. 2. 

167. Revision of proceedings— The record of proceedings of an examining board may be 

returned for revision. File 26260-3188:1, Sec. Navy, February 10, 1916. 

168. Rules of evidence. See Promotion, 24. 

169. Satisfactory mark — "A mark of 2.5 in a subject of an examination is considered as 

satisfactory " for promotion of officers of the Navy. File 262(30-3938:1, November 28, 
1916. 

170. Secretary of the Navy— Action upon marine examining boards. See Promotion, 134. 



PROMOTION. 491 

171. Same— Action upon naval examining boards. See Promotion, 5. 

172. Seniority— "From time immemorial the advancement of naval officers to higher 

offices has been made by seniority. This rule was not established by Congress, but 
by the executive branch of the Government, although since its inception statutes have 
been enacted by Congress in recognition of the rule and even purporting to make 
same obligatory." File 28687-4:1, J. A. G., Sept. 12, 1916, p. 2. 

"In consequence of the statutory enactments above quoted [act of August 3, 1861 
sec. 22, 12 Stat. 291, R. S. 1458; act of Feb. 27, 1877, 19 Stat. 244, R. S. 1480); act of 
August 29, 1916 modifying R. S. 1458], promotions by seniority in the Navy have come 
to be regarded as made pursuant to statute, although section 1458 shows upon its 
face affirmative evidence, that this system of promotion in the Navy owes its origin 
to a practice antedating statutes on the subject. It cannot therefore be said that the 
President has been making promotions in the Navy by seniority in compliance with 
statutes enacted by Congress, but instead the fact is more correctly stated that the 
President in the exercise of his discretion adopted the seniority rule of promotion in 
the Navy and continued to apply this rule unaffected by the fact that Congress had at 
a later date legislated to the same effect." File 28687-4:1, J. A. G., Sept. 12, 1916, 
pp. 2-3. 

"The question has repeatedly been raised as to the power of Congress to control 
the President's power of appointment which, under the Constitution, is subject only 
to the concurrence of the Senate. The authorities upon this question establish the 
following rules: 1st. That Congress has not the power to designate an appointee by 
name; 2d. That Congress has not the power to require the appointment of an individual 
who stands highest upon a competitive examination; and 3d. That Congress can not 
require the President to appoint to a vacancy in the military service, the senior 
officer in the next lower grade." (See in this connection 18 Op. Atty. Gen. 15; U. S. 
v. Ferreira, 13 How. 40; 13 Op. Atty. Gen. 516; 30 Op. Atty. Gen. 177; 9 Op. Atty. Gen. 
462; 18 Op. Atty. Gen. 27; 13 Op. Atty. Gen. 516; 4 Op. Atty. Gen. 164; 26 Op. Atty. 
Gen. 502). File 28687-4:1, J. A. G., Sept. 12, 1916. See also Ray v. Garrison, 42 App. 
D. C. 34; C. M. O. 3, 1917, 6. But see Constitutional Law, 4; " Offices," 16. 

See Promotion, 182 (2d par.), 183, 184, holding that Congress may regulate ad- 
vancements in rank without change in office by seniority. 

173. Same— "From an exhaustive review of the laws and regulations pertaining to ap- 

pointments and promotions in the military service, contained in 14 Opinions of the 
Attorney General, page 164, it is seen that promotions in the Army from the earliest 
times have been by seniority, except in extraordinary cases." File 14816-4, J. A. G., 
1909, p. 10. 

174. Same— Seniority alone gives no right to promotion. To it must be added physical, 

mental and moral fitness. (Steinmetz v. U. S., 33 Ct. Cls. 404, 410.) File 26253-200:1, 
J. A. G., Feb. 17. 1912. 

175. Sentence— Loss of numbers mitigated owing to effect on promotion. See Promotion, 

82. 

176. Service records of officers. See Naval Examining Boards, 11. 

177. Sicard Board. File 22724-18, J. A. G., Dec. 4, 1911, p. 5. 

178. Sick leave. See Retirement of Officers, 33. 

179. Sick list. See Retirement of Officers, 33. 

180. Staff Corps of the Marine Corps— The words "promotions to all grades below that 

brigadier general," appearing in section 24 of the act of June 3, 1916 (39 Stat. 183), 
includes the promotion of staff officers of the Marine Corps of the rank of major and 
lieutenant colonel to higher ranks in the Marine Corps below that of brigadier general, 
whether such promotion involves a change of grade or not. The act of June"3, 1916, 
section 24 (Public No. 85) requires examination of officers of stall departments prior 
to advancement in rank without promotion in grade. File 26521-144:1, Sec. Naw, 
July 10, 1916. 

181. Same— Officers of staff departments of the Marine Corps with the rank of major and 

lieutenant colonel are not "in the grades of major and lieutenant colonel."' and there- 
fore their professional examinations are not restricted by section 21 of t ho act of Juno 3, 
1916 (39 Stat. 183), to problems involving the higher functions of stall" duties and 
command. File 26521-144:1, Sec. Navy, July 10, 1916, p. 4, atlmning File 26521-144, 
Sec. Navy, June 24, 1916. 

182. Staff Corps of Navy— "In the various staff corps of the Navy, two or more ranks are 

commonly attached to a single office or 'grade.' In such cases, the ad\ aneoment of 
an officer from one rank to another rank in the same office or grade does not involve 
a change of office nor require that an exercise of the appointing power be invoked 
(See 20 Op. Atty. Gen. 358.) 



492 PROMOTION. 

" It is undoubtedly vrithin the constitutional power of Congress to provide how such 
advancement in rank without change of office shall be made (Wood v. United States, 
15 Ct. Cls. 151, affirmed, 107 U. S. 414) and where Congress has enacted statutes regu- 
lating such advancement in rank, its enactments on the subject are conclusive." 
File 28687-4:1, J. A. G., Sept. 12, 1916. 

Prior to August 29, 1916, such advancements in rank in the staff corps of the Navy 
were not regulated by any statute, but were left entirely to the discretion of the 
President (see unpublished opinion of Attorney General Bonaparte to Secretary of the 
Navy March 2, 1909, Department of Justice No. C-M, Navy Department file 26289-5a). 
File 28687-4:1, J. A. G~ Sept. 12, 1916. 

183. Same — "The advancement of staff officers in rank without change in office may be 

regulated bv Congress, but * * * it has not enacted any statutory regulations on 
the subject other than as applicable to the lower ranks in said corps; and accordingly, 

* * * the President may in his discretion select any staff officer with the rank of 
captain for advancement to the rank of rear admiral in the same office, or may pre- 
scribe general rules governing such advancements in rank, the rank of rear admiral 
in the staff corps having been established by the recent law (act of August 29, 1916), 
without making any provision as to how advancements thereto shall be effected." 
File 28687-4:1, J. A. G., Sept. 12, 1916, pp. 6-7. 

184. Same— "The advancement of staff officers to higher offices with or without advance- 

ment in rank is a matter resting entirely within the constitutional power of the Presi- 
dent, subject to such regulations by Congress as may not deprive him of the right to 
exercise his individual judgment and will; * * * the attempted regulations of 
Congress have gone beyond this point and are, therefore, void as binding regulations; 
and * * * the President may make such advancements by selection should he, 
. as a matter of policy, deem such action expedient." File 28687-4:1, J. A. G., Sept. 12, 
1916, p. 7. 

185. Statements of candidates— Sworn to. (Forms of Procedure, 1910, p. 231.) File 

26260-3342:2, Sec. Navy, June 2, 1916. 

186. Statutes governing the examination of officers of the Marine Corps for pro- 

motion — "Hereafter promotions to every grade of commissioned officers in the 
Marine Corps below the grade of commandant shall be made in the same manner and 
under the same conditions as now are or may hereafter be prescribed in pursuance of 
law for commissioned officers of the Army: 

"Provided, That examining boards which may be organized under the provisions 
of this act to determine the fitness of officers of the Marine Corps for promotion shall 
in all cases consist of not less than five officers, three of whom shall, if practicable, be 
officers of the Marine Corps, senior to the officer to be examined, and two of whom 
shall be medical officers of the Navy: 

"Provided further. That when not practicable to detail officers of the Marine Corps 
as members of such examining boards, officers of the line in the Navy shall be so 
detailed." (Act of July 28, 1892 27 Stat. 321.) See File 26260-3314, Jan. 5, 1915. 

"Sec. 20. * * * officers of the Marine Corps above the grade of captam, except 
major general, shall, before being promoted, be subject to such physical, mental, and 
moral examination as is now or may hereafter be prescribed by law for other officers 
of the Marine Corps." (Act of March 3, 1899, (30 Stat. 1009) as amended by act of Mav 
13, 1908. (35 Stat. 155.)) 

"Sec. 3. That the President be, and he is hereby, authorized to prescribe a system 
of examination of all officers of the Army below the rank of major to determine their 
fitness for promotion, such an examination to be conducted at such times anterior to 
the accruing of the right to promotion as may be best for the interests of the service 

* * * Provided, That if any officer fails to pass a satisfactory examination and is 
reported unfit for promotion the officer next below him in rank having passed said 
examination shalireceive the promotion: And provided, That should the officer fail 
in his physical examination and be found incapacitated for service by reason of phys- 
ical disability contracted in line of duty he shall be retired with the rank to which his 
seniority entitled him to be promoted; but if he should fail for any other reason he 
shall be suspended irom promotion for one year, when he shall be reexamined, and in 
case of failure on such reexamination he shall be honorably discharged with one year's 
pay from the Army * * * ." (Act of October 1, 1890. 26 Stat. 562.) See File 
26260-3314:5, J. A. G., July 21, 1916. [See in this connection Pbomotion, 194-196.J 



PROMOTION. 493 

"Provided further, That the provisions of existing law requiring examinations to. 
determine fitness for promotion of officers of the Army are hereby extended to include 
promotions to all grades below that of brigadier general: Provided further, That exami- 
nations of officers in the grades of major and lieutenant colonel shall be confined to 
problems involving the higher functions of staff duties and command. (Act of June 
3, 1916, section 24, 39 Stat. 183.) This act "applies to the examination for promotion 
of officers of the Marine Corps of the ranks of major and lieutenant colonel, by virtue 
Of the act of July 28, 1892. (27 Stat. 321.) File 26521-144, June 24, 1916. 

That for the purpose of advancement in rank to and including the grade of colonel, 
all commissioned officers of the line and staff of the Marine Corps shall be placed on a 
common list in the order of seniority each would hold had he remained continuously 
in the line. All advancements in rank to captain, major, lieutenant colonel, and 
colonel shall, subject to the usual examinations, be made from officers with the next 
junior respective rank, whether of the line or staff, in the order in which their names 
appear on said list. (Act of Aug. 29, 1918, 39 Stat, 610.) See File 11130-33, Sec. Navy, 
Sept. 20, 1916. 

Sections 1493 and 1494 apply to the Marine Corps. See Promotion, 165, 166. 

The act of July 28, 1892 [27 Stat. 321], not having been repealed either expressly or 
impliedly by the act of August 29, 1916 (providing that R. S. 1493 and 1494 apply to 
Marine Corps) is still in full force and effect. File 28687-14, J. A. G., Dec. 14, 1916, p. 3. 

187. Statutory boards— For promotion of officers of the Navy. See Promotion, 190-192. 

188. Statutory construction— The department instructed a Naval Examining Board as 

follows: "In construing laws relating to the naval service the board will be guided by 
the construction placed upon them by the Navy Department and will in the future 
refrain from qualifying its recommendation by any proviso concerning the legality of 
the department's decisions." File 26260-3362, Sec. Navy, March 21, 1916, p. 4. 

189. Summary proceedings. See Promotion, 64. 

190. Supervisory boards— Every officer of the Navy whose eligibility to promotion is to 

be acted upon by an examining board under the provisions of sections 1496, 1498-1505, 
Revised Statutes, has the right to be present at his examination. He must be duly 
notified of the time and place of his examination, and unless he waives his right or 
expresses a lack of desire to be present, he must be given leave of absence or permission 
to attend. No finding of the board adverse to his qualifications for promotion can be 
made without a personal examination of such officer unless he fails to appear after 
having been duly notified to do so. Held: That the proceedings and findings of a 
naval examining board are fatally irregular and defective in that— (1) Said officer, 
being at the time in the discharge of his duty on shipboard, and under orders of his 
superior officer, was not notified of the time and place of his examination for promo- 
tion, and was not given and did not have an opportunity or permission to exercise his 
right to appear and be heard at such examination; and (2) said board or examiners 
rejected said officer and his application for promotion without any examination of 
himself, although he had not failed "to appear, after being duly notified, before said 
board." (27 Op. Atty. Gen. 251, April 2, 1909.) See File 26260-3193:1, Sec. Navy, 
March 23, 1916. 

191. Same— Officers of the Navy failing before a supervisory board allowed to appear 

before a statutory board for personal examination. File 26260-2744, Sec. Navy. May 
22, 1916; 26260-2593:10, J. A. G., Aug. 28, 1916; 26260-3193:1, Sec. Navy, March 23, 1916; 
26260-3321:3, Sec. Navy Oct. 13, 1916. 

The candidate (failed professionally before a supervisory board) having reserved 
the right to appear in person before a Naval Examining Board (statutory board) in 
conformity with the provisions of sections 1503 and 1505 of the Revised Statutes, the 
department directed, in accordance with the opinion of the Attorney General of 
April 2, 1909 (27 Op. Atty. Gen. 251), that he be duly notified of the tifno and place 
that his case is to be examined by a Naval Examining Board, and be given permission 
to appear before said board if he so desires. File 26260-2850:4. Sec.' Navy, Dec 16 
1916. 

The department decided, in view of the Attorney General's opinion of April 2, 1909 
(27 Op. Atty. Gen. 251), and in view of the candidate having waived his right to 
appear in person before the Naval Examining Board (statutory board), thai it would 
be legal to suspend him from promotion for six months in conformity with the provi- 
sions of R. S. 1505 as amended by the act of March 11, 1912 (37 Stat. 73), for having 
failed professionally for promotion (before a supervisory hoard 1 ), but as a matter of 
expediency he will be allowed to appear before a statutory board for personal exami- 
nation. File 26260-2744, Sec. Navy, Dec. 16, 1916. 



494 PROMOTION. 

192. Same — A warrant officer failed before a supervisory board in bis examination for ap- 

pointment as ensign. No action was taken on tbe record and be "will be directed to 
appear in person before a statutory board for examination, preliminary to appoint- 
ment as an ensign in tbe Navy." File 26829-41, Sec. Navy, Dec. 12, 1916. See also 
Appointments, 18. 

193. Surgeon general. See Naval Examining Boards, 24. 

194. Suspension from promotion of Marine officers — An officer baving failed to pass 

professionally a few days prior to tbe approval of tbe act of August 29, 1916 (39 Stat., 
611), was not suspended from promotion for a period of one year in accordance witb 
tbe act of October 1, 1890 (26 Stat., 526), made applicable to the Marine Corps by the 
act of July 28, 1892 (27 Stat., 321), but was placed under the provisions of the first cited 
act, which provides: 

"In lieu of suspension from promotion of any officer of the Marine Corps who here- 
after fails to pass a satisfactory professional examination for promotion, or who is now 
under suspension from promotion by reason of such failure, such officer shall suffer 
loss of numbers, upon approval of the recommendation of the examining board, in 
the respective ranks, as follows: Lieutenant colonel, one: major, two; captain, three: 
first lieutenant, five: second lieutenant, eight: Provided, That any such officer shall 
be reexamined as soon as may be expedient after the expiration of six months if he 
in the meantime again becomes due for promotion, and if he does not in the mean- 
time again become due for promotion he shall be reexamined at such time anterior to 
again becoming due for promotion as may be for the best interests of the service: 
Provided further, That if any such officer fails to pass a satisfactory professional reex- 
amination he shall be honorably discharged with one year's pay from the Marine 
Corps." File 26260-3624, Sec. Navy, Aug. 29, 1916. See also File 26260-3758, October. 
1916. 

195. Same — A major having been examined for promotion subsequent to August 29, 1916, 

failed both morally and professionally. Held: That ''as it is not thought that the law 
intends to impose a double penalty where the failures are concurrent, * * * his 
suspension from promotion should be only for a period of one year, with correspond- 
ing loss of date, in accordance with the law relating to failures other than profes- 
sional." File 26260-3624:2, Sec. Navy, Sept, 29, 1916. 

196. Same — A second lieutenant was examined for promotion when he was No. 2 on the 

list of second lieutenants and failed professionally. He was suspended from promo- 
tion for one year, with corresponding loss of date in accordance with the act of October 
. 1, 1890 (26 Stat., 526), and the act of July 28, 1S92 (27 Stat., 321). The year of suspen- 
sion having expired on August 18, 1916, he was reexamined and found qualified. 
Held: That this officer "was not under suspension from promotion on August 29, 
1916, the date of approval of the naval appropriation act (39 Stat,, 611), the provisions 
contained therein, limiting the loss of numbers to eight in the case of a second lieu- 
tenant now under suspension, can not be held to apply in his case." File 26260- 
3149:3, Sept. 22, 1916. 

197. Same — Reexamination to avoid suspension from promotion is illegal. See Promotion, 

68. 

198. Same— Refusal to have a surgical operation performed. See Surgical Operations. 

199. Suspension from promotion of officers of the Navy— In interpreting section 1505 

R. S. as amended by the act of March 11, 1912 (37 Stat., 73), the following conclusions 
were reached: (a) An officer due for promotion after a specified period of service, who 
is suspended from promotion for a period of six months, should, if afterwards pro- 
moted, be given rank from a date six months later than that on which he first became 
due for promotion; (b) An officer due for promotion by reason of seniority who is sus- 
pended from promotion for a period of six months, should, if afterwards promoted, be 
given rank from the date on which the vacancy occurred which he is promoted to fill, 
provided such vacancy did not occur during the six months' period of suspension: 
(c) An officer due for promotion by reason of seniority, who is suspended from pro- 
motion for a period of six months, should, if afterwards" promoted, be given rank from 
the date that the period of suspension expired where the vacancy which he is promoted 
to fill occurred during the six months' period of suspension. File 26260-2605: 2, 
J. A. G., Aug. 17, 1915; C. M. O. 29, 1915, 9-10. 

200. Same — An assistant surgeon having completed three years' service as such on May 4, 

1915, was suspended from promotion, because of professional failure on examination, 
for six months from July 19, 1915, with the loss of nine numbers in accordance with 
Revised Statutes 1505, as amended by act March 11, 1912 (37 Stat 73). This loss of 
numbers operated to place him below other officers who will not be promoted until 



PROMOTION. 495 

April 10, 1917, although, his period of suspension will expire on January 18, 1916. Held , 
There is no legal obstacle to issuing this officer his commission as soon as he qualifies, 
to rank from November 4, 1915, this being six months later than the date from which 
he first became due for promotion {see C. M. O. 29, 1915, p. 9). He should then be 
carried at the foot of the grade of passed assistant surgeon until the officers who are 
eventually to rank him in consequence of his loss of numbers have been advanced over 
him in that grade. 

The practice of executing loss of numbers by immediately reducing the officer in 
his grade when his period of suspension takes effect should be modified in all cases, 
whether the officer is due for promotion by length of service or to fill a vacancy; the 
officer should mark time during his period of suspension while his juniors are advanced 
over him, as was the practice under section 1505, Revised Statutes, prior to its amend- 
ment: and when his period of suspension expires, if he has not lost the required num- 
bers, he should nevertheless be promoted and continue to mark time until his loss of 
numbers has been fully executed. In such case the loss of numbers should be deter- 
mined as at present by the condition of the Navy Register on the date that the sus- 
pension becomes effective, the suspended officer profiting by any casualties which 
may occur in the same manner as though he had been reduced in grade. (In this 
connection, see C. M. 0. 14, 1915; see also, File 26521-40, J. A. G., June 11, 1912.) 

The opinions of the Judge Advocate General of May 14, 1915 (file 26266-475), and 
August 17, 1915 (file 26280-2605: 2), published in Court-Martial Order No. 29, 1915, 
pp. 9-10, were rendered with reference to the practice of executing the loss of numbers 
by reducing the officer in his grade, and the question of having the officer mark time 
while his j uniors were advanced over him until his loss of numbers had been executed, 
was not then presented nor considered; nevertheless the conclusions expressed in said 
opinions would apply equally to the change in such practice now suggested, although 
different results will be produced. 

Inasmuch as the law does not provide in what manner the loss of numbers shall be 
executed — that is, whether the officer shall be reduced in his grade or mark time while 
his juniors are advanced over him, but on the contrary, permits of either practice, 
thereby leaving the determination of this question to the administrative officers— it 
is held that the action heretofore taken was legal and should not be disturbed where 
the officers concerned have already been promoted and commissioned; but that the 
method now suggested of having the officer mark time while his juniors are advanced 
over him until he has lost the required numbers, should be applied to all cases now 
pending or which may hereafter arise. File 26260-3091: 1, J. A. G., Nov. 9, 1915; 
C. M. O. 42, 1915, 11-12. 

201. Same — Officer due for promotion after a specified period of service, suspended from 

promotion for six months. C. M. O. 29, 1915, 9-10; 42, 1915, 11-12. See also Promo- 
tion, 199, 200. 

202. Same— Officer due for promotion by reason of seniority, suspended from promotion 

for six months. C. M. O. 29, 1915, 9-10; 42, 1915, 11-12. See also Promotion, 199, 200. 

203. Same— Suspended from promotion because of alleged irregularities. File 26260-823:7, 

J. A. G., April 5, 1912. 

204. Same— Promotion delayed until officer changed his manner in handling enlisted men. 

See Promotion, 56. See also Promotion, 57-59. 

205. Same — Suspension of final action where officer has qualified — A machinist was exam- 

ined, found qualified, and recommended for promotion to the grade of chief machinist. 
An inspection of the reports on fitness, attached to the record of proceedings of the 
Naval Examining Board, disclosed various unfavorable entries relative*" to this 
officer's professional qualifications, particularly with reference to handling men. 
The department recommended to the President that: "Asa very high order of abilit y 
to handle men is an essential qualification for a chief machinist in the naval service, 
I recommend that final action upon the finding of the board in I his case be suspended 
for a period of one year, in order that an opportunity may be atYorded Machinist 
* * * to further establish his fitness for promotion which , considering t he ev idence 
above referred to, I regard as open to question." File 26260-2044, See. Navy. April 28. 
1913. 

206. Same— A boatswain, after six years' service in his grade, was examined for promotion 

to chief boatswain, found not professionally qualified, and suspended for one year. 
After the expiration of his period of suspension he was reexamined, and again found 
not qualified professionally. Under these circumstances. «<//7,sy<?, that the record may 
be returned to the board for further examination of the candidate; or it may be dii- 

50756°— 17 32 



496 PROMOTION. 

not more than one year's pay ; P» 'ov fe d >J^f*f^n& eleven." File 26260-3193:1, 

208 ¥ SE3sKS333ffi.«att«.... 

209 Sam™ExaStalti0E of an officer of the Navy before the existence of a vacancy. See 

fill a vacancy actually existing. File 2625t»-S3.4, J. A. u., Aug. », i*u, i> 
2.2 VenSXeas^An officer who is suffering from a venereal disease should be sus- 

213 ' V ^^*d?t. , S , SS^?SnSK% , ^ , SU™™ IQi PBOMOT.O,, 

14 2- . ■ _, / AllOT15t oq iqiA>) absolutely no ground for the contention that any 

215 SaSSSan acting assistant surgeon to pass may be waived by the Secretary 
21 °- 8a onh7Na 1 tT See ActinI A"^£™"« 2 ffi°l5i Act of April 28, 

• See aZso Appointments, 18; Promotion, 192- _ PromoT ion, 205, 206. 

219. wSraSK^Sn«N™ K»« BOXKUS, 25-26. 
PROMOTION BY f EJECTION, promotion bv Selection, 4. 

2- ^'neratoS No'. Jllf iulasttlftl'ie * Publishes act of August 29, 1916. See 

SSi^^ 



PROMOTION BY SELECTION. 497 

"Each member of said board shall swear, or affirm, that he will, without prejudice 
or partiality, and having in view solely the special fitness of officers and the efficiency 
of the naval service, perform the duties imposed upon him as herein provided. 

" The board shall be furnished by the Secretary of the Navy with the number of 
vacancies in the grades of rear admiral, captain, and commander to be filled during 
the following calendar year, including the vacancies existing at the time of the con- 
vening of the board and those that will occur by operation of law from the date of con- 
vening until the end of the next calendar year, and with the names of all officers who 
are eligible for consideration for selection as herein authorized, together with the record 
of each officer: Provided, That any officer eligible for consideration for selection shall 
have the right to forward through official channels at anytime not later than ten days 
after the convening of said board a written communication inviting attention to any 
matter of record in the Navy Department concerning himself which he deems im- 
portant in the consideration of his case: Provided, That such communication shall 
not contain any reflection upon the character, conduct, or motives of or criticism 
of any officer: Provided further, That no captains, commanders, or lieutenant com- 
manders who shall have had less than four year's service in the grade in which he is 
serving on November the thirtieth of tne year of the convening of the board shall 
be eligible for consideration by the board: Provided further, That the recommen- 
ation of the board in the case of officers of the former Engineer Corps who are re- 
stricted by law to the performance of shore duty only and in that of officers who may 
hereafter be assigned to engineering duty only shall be based upon their compara- 
tive fitness for the duties prescribed for them by law. Upon promotion they shall 
be carried as additional numbers in grade. 

"The board shall recommend for promotion a number of officers in each grade 
equal to the number of vacancise to be filled in the next higher grade during the fob 
lowing calendar year: Provided, That no officer shall be recommended for promotion 
unless he shall have received tne recommendation of not less than six members of said 
board: Provided further, That the increase in the number of captains herein authorized 
shall be made at the rate of not more than ten captains in any one year. 

"The report of the board shall be in writing signed by all of the members and shall 
certify that the board has carefully considered the case of every officer eligible for con- 
sideration under the provisions of this law, and that in the opinion of at least six of 
the members, the officers therein recommended are the best fitted of all those under 
consideration to assume the duties of the next higher grade, except that the recom- 
mendation of the board in the case of officers of the former Engineer Corps who are re- 
stricted by law to the performance of shore duty only, and in that of officers who 
may hereafter be assigned to engineering duty only, shall be based upon their com- 
parative fitness for the duties prescribed for them by law. 

"The report of the board shall be submitted to the President for approval or dis- 
approval. In case any officer or officers recommended by the board are not acceptable 
to the President, the board shall be informed of the name of such officer or officers, 
and shall recommend a number of officers equal to the number of those found not 
acceptable to the President, and if necessary shall be reconvened for this purpose. 
When the report of the board shall have been approved by the President, the officers 
recommended therein shall be deemed eligible for selection, and if promoted shall take 
rank with one another in accordance with their seniority in the grade from which 
promoted: Provided, That any officers so selected shall prior to promotion be subject 
in all respects to the examinations prescribed by law for officers promoted bv seniority, 
and in case of failure to pass the required professional examination such officer shall 
thereafter be ineligible for selection and promotion. And should any such otlioer fail 
to pass the required physical examination he shall not be considered, in the event of 
retirement, entitled to the rank of the next higher grade. 

"On and after June thirtieth, nineteen hundred and twenty, no captain, com- 
mander, or lieutenant commander shall bo promoted unless ho has had not less ilum 
two years' actual sea service on sea-going ships in the grade in which serving or who is 
more than fifty-six, fifty, or forty-five years of age, respectively: Provided, That the 
qualification of sea service shall not apply to officers restricted" to the performance of 
engineering duty only: Provided further, That captains, commanders, and lieutenant 
commanders who become ineligible for promotion on account, of age shall be retired 
on a percentage of pay equal to two and one-half per centum of their shore-duty pay 
for each year of service; Provided further, That the total retired pay shall not exceed 



498 PROMOTION BY SELECTION. 

seventy-five per centum of the shore-duty pay they were entitled to receive while on 
the active list." (Act of August 29, 1916 (39 Stat. 578). G. O. 231, August 31, 1916, 
pp. 9-11.) See C. M. O. 3, 1914. 

5. Object of selection.— The object of the board on selection is not at all to determine 

definitely whether or not the officers recommended by it are in fact qualified to per- 
form the duties of the next higher grade at sea. That is still the function of the ex- 
amining board which under the present act examines the officers who have been 
recommended by the board and selected by the President. The object of the selec- 
tion board is carefully to consider the cases of all officers who are, under the law, 
eligible for promotion and to form their opinions from any means which may be 
available as to those among the eligibles who are best qualified for promotion." File 
26521-169, J. A. G., Nov. 28, 1916, p. 5. 

6. "Plucking board." See Commissions, 42; Promotion, 123; Retirement of 

Officers, 41. 

7. Policy of Government changed regarding promotion— On August 29, 1916, the 

naval appropriation bill (39 Stat. 578) was approved containing a provision for pro- 
motion by selection to the grades of commander, captain, and rear admiral. In the 
adoption of the system of promotion by selection for the aforementioned grades Con- 
gress completely altered its policy in regard to promotion in the Navy which had been 
pursued practically since the beginning of this Republic. File 26521-169, J. A. G., 
Nov. 28, 1916, p. 4. 

8. Records of officers.— Question as to whether the provisions of the act of June 18, 1878 

(20 Stat. 165), apply. Held, That the board shall be furnished with the entire "rec- 
ord of each officer" eligible for consideration. File 26521-169, J. A. G., Nov. 28,1916; 
C. M. O. 3, 1917, 7. 

9. Same — " Every officer concerned has a right to submit, through official channels, at 

any time not later than ten days after the convening of the board, a written communi- 
cation inviting attention to any matter of record in the Navy Department concerning 
matters which he deems important in the consideration of his case. This written 
communication should be in the hands of the board by December 12, 1916." File 
28026-1484, J. A. G., Nov. 14, 1916. 

10. Staff Corps. File 28687-4:4, J. A. G., Oct. 30 and 31, 1916. See also Promotion, 182- 

184; C. M. O. 3, 1917, 7-9. 

11. " Together with the record of each officer" — To what "record" do these words 

contained in the act of August 29, 1916, refer? See Promotion By Selection, 8; C. 
M. O. 3, 1917, 7. 

PROPERTY. 

1. Public property. See Public Property. 

2. Taxation— Persons in the Governnieut service. See Poll Taxes. 

PROPERTY OF THE UNITED STATES. See Public Property. 

PROPHYLACTIC TREATMENT. 

1. Court-martial— For refusal to take G. C. M. Rec. 21477. 

2. Small-pox. See Smallpox. 

3. Typhoid. See Typhoid Prophylactic. 

4. Venereal. See Venereal Prophylactic. 

PROSECUTING A CLAIM AGAINST THE UNITED STATES. See Claims; Claims 
Against the United States. 

PROSECUTING WITNESSES. See Counsel, 45. 

PROTECTION OF THE UNIFORM. See Discrimination Against Uniform; 
Uniform. 

PROTESTS. 

1. Record of proceedings— not allowed on. See Exceptions, 2; Bills of Exceptions, 1. 

2. Reports on fitness— Summary courts-martial members' protest against entry as to 

manner of performing duty. See Criticism of Courts-martial, 36; Reports on 
Fitness, 3. 

PROTOCOLS. 

1 Spain— The "Protocol of agreement between the United States and Spam " was signed 
August 12, 1908. File 26516-47, J. A. G., May 18, 1911, n. 2. See also File 24368-11, 
J. A. G., Mar. 14, 1914. 



PUBLIC PKOPERTY. 499 

PROVED BUT WITHOUT CRIMINALITY. See Acquittal, 25. 
PROVED BUT WITHOUT CULPABDLITY. See Findings, 44, 70. 

PROVISIONS AND CLOTHING, BUREAU OF. 

1. Name— The name of the Bureau of Provisions and Clothing was changed to Supplies; 
and Accounts by the act of July 19, 1892 (27 Stat. 243, 245). File 22724-16:1, J. A. G., 
Feb. 13, 1911, p. 2. 

PROVOCATION. 

1. Clemency— Provocation as grounds for. See Clemency, 45. 

PROVOST. 

1. Haiti— Authority of commander in chief of cruiser squadron to try political (military) 
prisoners by military commission or provost. See Military Commissions. 

PROVOST COURT. File 5526-39:20. 

PROVOST MARSHAL. 

1. Witness— The provost marshal must be present while witnesses testify, even though 
he himself may later be called as a witness. G. C. M. Rec. 31355, p. 2. 

PRUSSIAN LIFE-SAVING MEDAL. See Decorations, 5. 

PUBLIC. 

1 . Definition—' ' All the authorities agree that ' public ' is a relative term used in contradis- 
tinction to the word 'private' (e. g., State v. Sowers, 52 Ind. 311, 312.)" File 26251- 
2993, J. A. G., Mar. 10, 1910, p. 5. See pages 6-8 of the foregoing letter for a general 
discussion of various definitions of the words "public "and "private." 

PUBLIC ADMINISTRATOR. See Disposition of Effects, 2. 

PUBLIC LANDS. 

1. Leasing— Of public lands by Executive action. See 13 J. A. G., 449, Apr. 28, 1905. 
See also File 1266-1102-01. 

PUBLIC MONEY. 

1. Snips' stores — The profits from sales made by ships' stores in the Navy, as authorized 
by the act of June 24, 1910 (30 Stat. 019), are not public money within the meaning of 
section 3648, R. S. (Compt. Dec. Aug. 11, 1914, file 26254-1571:2). Seealso File 26254- 
1759, Apr. 20, 1915. 

PUBLIC OFFICES. See "Office." 

PUBLIC OPINION AS TO DRUNKENNESS. See Drunkenness, 73. 

PUBLIC POLICY. See C. M. O. 31, 1911; 21, 1910, 15; Evidence, 82, 83; Salvage, 2. 

PUBLIC PRESS. 

1. Good name of naval service— Dragged into notoriety through. C. M. 0. 14, 1915, 1-2. 

2. Newspapers. See Newspapers; Publication. 

PUBLIC PROPERTY. 

1. Clothing, useless -Disposition of. See File 26288-394, Sec. Navy, Apr. 24, 1913. 

2. Defense of— By sentinel using firearms. See Firearms, 2. 

3. Loss of— Responsibility of officer for. File 18140-10, J. \. G., Apr. 24, 1911. See also 

Public Property, 5. 

4. Loss or damage of— Checkage of pay for. See Pay, 17, 18. 

5. Marine Corps— Responsibility for loss of, iixed. See File 1 SI 40-37, Sec. Navy, Aug. 

31. 1916; 18140-10, J. A. G., Apr. 24, 1911; 18140-32, Sec. Navy, fctg. 26, 191.5. ' 

6. Prisoners' useless clothing— Disposition of. File 262SS-394, Sec. Navy, Apr. 24. 

1913. 

7. Recovery of pawned or stolen property— The law is well set (led that no pawnbroker 

may legally retain property of the United States which has been stolen and pawned. 
It is the duty of any snph broker having such proper t y in his possession to return the 
same to the United States on demand, and, in the event of Ins refusal to do so. legal 
proceedings against him may be instituted by the Department of Justice. Also the 
United States, through any of its officers or representatives detailed for the purpose, 



500 PUBLIC PROPERTY. 

may retake said property if this can be done without a breach of the peace. In any 
event the United States can not be required, nor is it authorized, to refund the 
amount loaned on its property by a pawnbroker to persons by whom said property 
has been stolen. File 26804-8, J. A. G., Aug. 28, 1916; C. M. 0. 30, 1916, 8. 

PUBLIC REPRIMAND. 

1. Courts-martial— May be reprimanded for leniency. See Adequate Sentences; 

Criticism of Courts-Martial. 

2. Court-Martial, Orders— Should show that public reprimand involved in a general 

court-martial sentence was administered. But see C. M. O. 7, 1912, 1; 9, 1913, 3. 

3. Same— Record of officer— Published in a court-martial order as a part of a public 

reprimand. See Public Reprimand, 14. 

4. Definition of— The mere fact that a letter of reprimand is exhibited to one or more 

persons before reaching the officer to whom addressed does not constitute such a 
letter a "public reprimand." The publication of such letter or contents thereof 
throughout the naval sendee is requisite to constitute it a "public reprimand." 
File 26251-2993, J. A. G., Mar. 10, 1910. See also Reprimand, 2. 

The unbroken chain of percedents of the department sho \vs that the method of exe- 
cuting a sentence of public reprimand has been from the earliest days a publication 
of the reprimand to the sendee in a court-martial order. 

A private reprimand is executed by addressing a letter to the officer concerned 
through the usual official channels. File 26251-2993, J. A. G., Mar. 10, 1910, p. 8. 

5. Department does not favor as part of a general court-martial sentence- 

In regard to that part of the sentence imposed which adjudges a public reprimand, 
the attention of the court is invited to the fact that sentences involving public repri- 
mand are not regarded with favor bv the department. (C. M. O. 7, 1912, 3; 31, 1912; 
32, 1912; 34, 1912; 35, 1912; 37, 1912; 23, 1914; 28, 1914, 4-5; 45, 1914; 46, 1914.) C. M. O. 
25, 1915; 12, 1916, 2. 

6. Same— Id an officer's sentence which included loss of numbers and to be "publicly 

reprimanded" the department while approving sentence stated the reprimand 
will "be dispensed with." C. M. 0. 12, 1904, 4. See also C. M. O. 104, 1896, 3-4. 

Where a public reprimand constituted the entire sentence the department disap- 
proved in order that the well established policy of the department, which regards such 
a sentence as undesirable, might be emphasized. C. M. O. 38, 1916. 

7. Jeopardy, former— A public reprimand which is not administered as a part of a 

court-martial sentence does not constitute former jeopardy or bar trial. See Jeop- 
ardy, Former 23, 30; Plea in Bar, 6. 

8. Letter o£ department is not necessarily a public reprimand— Charges were 

preferred to the department by an officer of the Navy against another officer in the 
service, with recommendation that the latter be brought to trial by general court 
martial. After consideration of the matter, the officer against whom the charges 
were made was informed by the decartment, in a letter sent him through the usual 
official channels, that his conduct "receives the disapproval and censure of the 
department;" but that for reasons of public policy his trial by court-martial would 
not be ordered. Held, that the department's letter was not a public reprimand; 
and further held, that if such a letter could be regarded as a public reprimand, it 
would not constitute a "punishment" which could be pleaded bv the recipient 
in bar of trial by court-martial. File 26251-2993, J. A. G., Mar. 10, 1910. 

9. Letter of public reprimand by Secretary of Navy— Published in full in court- 

martial order. C. M. O. 11, 190S, 3; 1, 1909. 

In administering a sentence of public reprimand the convening authority stated in 
part: "The commander in chief is called upon by the sentence of the court-martial 
to administer a reprimand; this should be felt by a sensitive officer as much of a repri- 
mand as could be gained by a reprimand administered; I leave it to be so considered; 
for I am led to infer that this officer's sensibilities are not in a blunted condition; 
therefore he may consider himself reprimanded. C. M. O. 20, 1894, 2. 

Although the convening authority stated that the publication of the court-martial 
order would constitute the public reprimand, he also added: "A casual reading, 
however, of the charges and specifications, with the findings thereon, will be suffi- 
cient to enable the sendee to form its own estimate of an officer who has been found 
guilty of the acts alleged in this case." C. M. O. 28, 1908, 4. 

Where accused was charged with "manslaughter" and another charge, and ac- 
quitted of the first charge but found guilty of the second, the Secretary of the Navy, 
in administering a public reprimand adjudged by the court as part of its sentence, 



PUBLIC REPRIMAND. 501 

stated in part: "These offenses on your part have led to a calamity so clearly unfore- 
seen by you and so distressing that no words of reproof can be needed to make you 
feel their gravity. Your disobedience to the law of your country, your forgetfulness 
of the full import of your oath, your yielding to fierce and angry passions when 
tempted by a sense of wrong have borne fruits so bitter that your worst punishment 
has been already suffered. The merciful sentence of the court which tried you leaves 
you a member of the honorable profession you have chosen In that great school of 
self-sacrifice and obedience a life useful to your country will, it is hoped, atone for 
grave faults which have clouded the early years of your service." C. M. . 128, 1905, 6. 

10. Members of courts-martial— May be reprimanded for failure to properly perform 

court-martial duty. See Criticism of Courts-Martial, 35. 

11. Nominal punishment — A oublic reprimand is a nominal punishment. C. M. O. 

8.1915,3. 

12. Not favored — Public reprimand as a part of sentences is not favored by the depart- 

ment. See Public Reprimand, 5. 

13. President of the United States— Remitted a mitigated sentence and directed that 

the accused (officer) be "reprimanded for neglect of duty." C. M. O. 48, 1904, 1. 

14. Record of officer — Published in a court-martial order as a part of a public reprimand. 

C. M. O. 3, 1911, 2; 29, 1912, 1; 32, 1912, 2; 35, 1912, 1; 36, 1912, 2; 2, 1913, 1; 3, 1913, 2. 

15. Remitted— By department. C. M. O. 12, 1904, 4. 

16. Same— By commander in chief. C. M. O. 38, 1912. 

17. Right to— "In the absence of express limitation or restriction it would seem that, 

whatever the propriety of so doing, the inherent right of a commander in chief to 
express approval or disapproval of the official conduct of subordinate officers under 
his command can not be denied. Such has been the uniform view of the department 
with reference to the right of the Secretary of the Navy to administer a reprimand. 
There is abundant precedent for the reprimand by the Secretary of the Navy of an 
officer for a breach of discipline or a failure in the performance of duty." {See G. O. 
31, Mar. 22, 1864; G. O. 87, Sept. 7, 1868.) C. M. O. 9, 1893, 10. 

"The practice is as old as the department itself. Cases have occurred where the 
department, without trial, has pronounced emphatic reprimand upon officers in 
General Orders. - The publicity that is given either to its commendation or its reproof 
is a matter within its own discretion, in the exercise of which it consults only the 
public interest." C. M. O. 93, 1893, 10. 

"Nothing can be better settled in military law and practice than the right of a com- 
mander in chief to reprimand or censure an officer by general order or by public 
letter, or in any other manner which he may deem for the best interests of the service. 
The mode adopted must lie, and ought always to lie within the discretion of the 
commander in chief; if it does not, it would be impossible to maintain military dis- 
cipline. The practice and precedents in our own Navy are beyond question, as can 
be readily shown." C. M. O. 93, 1893, 10. 

"The right of a superior officer to censure a subordinate, publicly or privately for 
negligence in the performance of duty is an inherent attribute of command, and is 
presumed to exist unless taken away by express provision of law or other competent 
authority." C. M. O. 9, 1893, 9-10. 

18. Secretary of the Navy— The Secretary of the Navy has the right to censure a subordi- 

nate, publicly or privately, for negligence or inefficiency in the performance of duty, 
or for misconduct bringing discredit upon the service. Such rebuke may be pub- 
lished to the service in such manner as the department may, in its discretion, decide, 
and does not constitute a bar to subsequent trial for that offense by court-martial. 
It is the mere exercise of the Secretary's right of administration of discipline and is 
in no wise connected with his power of reviewing authority wherein he merely 
executes the sentence of public reprimand imposed by the court-martial. File 
26251-2993, J. A. G., Mar. 10, 1910. 

19. Sentence— While the proper sentence is "public reprimand," courts-martial have 

irregularly sentenced the accused "to be reprimanded by the Secretary of the Navy." 
C. M. 0. 36, 1908, 2. J J 

20. Same— Sentences in which "public reprimand" constituted the whole sentence: 

C. M. O. 15, 1909; 20, 1909; 30, 1909; 12, 1910; 19, 1910; 29, 1910; 9, 1911; 13. Mil- 
28, 1911; 14. 1912; 4, 1913; 9, 1913; 39, 1913; 15, 1914; 23, 1914; 28. 1914; 45, 1914; 46, 
1914; 38, 1916. » t » t , . » , , 



502 PUBLIC REPRIMAND. 

21 . Undesirable form of sentence— It is inadvisable in cases where a substantial sentence 

is imposed by the court that an officer suffering such substantial sentence should in 
addition thereto be subject to a public reprimand. C. M. O. 104, 1896, 6. ■ See also 
File 12S21-83:34, Sec. Navy, Jan. 13, 1917; Bu. Nav. file N 5 F, 3711-64, Jan. 4, 1917; 
Public Reprimand, 5. 

22. Same— A sentence consisting entirely of a public reprimand is not favored by the de- 

partment. C. M. 0. 38, 1916; G. C. M. Rec. 32728. See also Public Reprimand, 5. 

PUBLIC STATUTES. See Statutes; Statutory Construction and Interpretation. 

PUBLIC TRIAL. 

1. Accused — Requested findings and sentence be set aside, claiming trial was not a public 

trial. See Appeals, 4. 

2. General courts-martial— The sessions of a general court-martial shall be public. 

See Court, 126, 127. 

PUBLIC VESSELS. See Collisions, 10. 

PUBLIC WORKS. 

1. No objection — Is perceived to the use of the expression "public works" for administra- 
tive purposes, grouping thereunder such objects as may be deemed proper, but the 
term must not be emploved in such manner as to conflict with existing law. File 
3980-621, J. A. G., May 3i, 1911, p. 10. 

PUBLICATION. 

1. Army and Navy Journal— Officer tried by general court-martial for writing and 

furnishing for publication, in The Army and Navy Journal, an article which must 
necessarily reflect upon worthy officers of the Navy, and which was done in violation 
of a general order. G. O. 61, .Time 24, 1865. 

2. Books — Permission granted to publish. See Books, 5. 

3. Libel. See Libel, 4. 

4. Newspapers— Officers acting as correspondents for. See Newspapers, 5. 

5. Same— A commissioned officer was severely reprimanded by the Secretary of the Navy 

for the "publication of a letter written by an [the] officer to his father concerning cer- 
tain operations in which certain foreign governments were directly concerned " which 
"was a source of very great embarrassment to the Department of the Navy and the 
Department of State." File 26251-12159, Sec. Navy, Oct. 30, 1916, p. 6. 

6. Same — A chief petty officer was severely reprimanded for writing a letter directed to a 

newspaper upon matters of an unneutral character. File 19585-857, Sec. Navy, Nov., 
1916. 

PUNISHMENT. See also Sentences. 

1. Certainty not degree — It is the certainty of, and not the degree of punishment, which 

deters the wrongdoer. 

2. Commanding officers— Punishments by commanding officers. See Commanding 

Officers, 31-33. 

3. Object of — The primary object of punishment is the deterrent effect upon others. G. 

C. M. Rec. 24607. 

PUNITIVE. 

1. Prisoners awaiting trial— Confinement should not be punitive. C. M. O. 27, 1915, 9. 

See also Prisoners, 4. 

2. Proceedings. C. M. O. 35, 1915, S. See also Civil Authorities, 16. 

3. Sentences. See Punitive Sentences. 

PUNITIVE SENTENCES. See C. M. O. 129, 1898, 8. 

PURCHASE, DISCHARGE BY. 

1. Definition. Scr Ordlnary Discharges, 2. 

2. 1-4893. See Naval Instructions, 1913, 1-4893. 

3. Poll taxes— Payment of by nerson who received a discharge by purchase from Navy. 

See Poll Ta'xes, 5. 

"PURSUER." 

1. Detective agency— Arresting deserter. See Civil Officers, 2. 

QUALIFACATIONS FOR APPOINTMENT TO OFFICE. See Appointments, 36. 



QUESTIONS OF LAW. 503 

QUALIFACATIONS OF MEMBERS OF COURTS-MARTIAL. See Members of 
Courts-Martial, 39. 

QUALIFICATIONS OF OFFICERS. See Officers, 95, 96, 97. 

QUARANTINE CHARGES. See Constitutional Law, 7. 

QUARTERS. 

1. Agreement of two officers concerning quarters— Resulted in a general court-martial 

for both. File 26254-2052. See also Officers, 3; Privilege, 3. 

2. Allowances— And commutation for quarters for officers of the Navy. File 28479-141, 

J. A. G., Nov. 15, 1915. See also 153 S. & A. Memo. 2854. 

3. Drunk in quarters. See Drunkenness, 73, 75. 

4. Naval Academy — Assignment of quarters at the Naval Academy. File 9886-18, Sec. 

Navy, Dec. 12, 1908, quoted with approval in File 28479-141, J. A. G., Nov. 15, 1915. 
See also File 26254-2120:1. 

5. Same— "Married officers'" quarters. See File 9886-16, Sec. Navy, Oct. 15, 1908, cited 

in File 28479-141, J. A. G., Nov. 15, 1915. 

6. New York Navy Yard — Assignment of quarters to unmarried junior officers. File 

20032-4, Sec. Navy, Nov. 27, 1908, quoted approvingly in File 28479-14:1, J. A. G., 
Nov. 15, 1915. 

7. Pensacola, Fla., Aeronautic Station — Assignment of quarters in building No. 34. 

File 28479-141, J. A. G., Nov. 15, 1915. 

8. Puget Sound Navy Yard. File 26254-2134; 9886-26:1. 

9. Submarine— Hire of quarters for officers of submarines while such vessels are under- 

going repairs. File 26254-2131, Sec. Navy, Nov. 17, 1916. 

QUARTERLY CLOTHING RETURNS. 

1. Evidence, as. C. M. O. 52, 1910, 3. 

QUESTIONS ASKED WITNESS BEFORE COURTS-MARTIAL. 

1. Numbered properly. See Record of Proceedings, 95. 

QUESTIONS OF LAW. 

1. Comptroller of the Treasury— Weight of decisions with reference to points of law. 

See Comptroller of the Treasury, 10. 

2. " Concerning the personnel." See Coast Guard, 1; Judge Advocate General, 

14, 17, 33. 

3. Courts-martial— Where the only difficulty existing is one of law, decisions of the 

courts (civil), opinions of the law officers of the Navy (Attorney General and Judge 
Advocate General), or decisions of the department (Secretary of the Navy) based 
thereon, are not to be lightly disregarded by naval courts-martial without incurring 
the full measure of responsibility which must be ascribed to them for the resulting 
miscarriage of justice. File 26251-12159, Sec. Navy, Dec. 9, 1916. See also Criticism 
of Courts-Martial, 14. 

4. Same— "The action of the court in this case, in changing its finding to conform to the 

law, shows a proper appreciation on the part of the court of its true function, that of 
applying the law to the facts as it finds them. In determining the questions of fact 
the members of the court must arrive at their conclusions solely from the evidence 
that is adduced or comes before the court, and not from any knowledge or information 
otherwise acquired. In exercising this part of its function a court" is assisted by a 
knowledge and application of the rules of evidence, but no considerable knowledge of 
the law is required. It is to this duty of deducing the facts from a eonsidera t ion of the 
evidence that the part of the oath administered to members requiring them to try a 
case 'according to their own consciences' refers. The facts having cieen found, it 
remains for the court to apply the law to them. The exorcise of t his fund ion depends 
not on the consciences of the members but upon a knowledge of the law. A compre- 
hensive knowledge of this subject is a profession in itself, and. while officers of the 
navalservice are accountable for the information promulgated bv court-man ial orders 
and other official publications, it is to be expected that eases will arise in which naval 
courts willroquire assistancein applying the moreintricat e prov isions of law. There- 
fore, if by reason of a lack of knowledge of the law a court arrives at an incorrect find- 
ing or unjustified sentence, there has been provided , in t ho hit crest s ot just ice, a moans 
of correcting such error. Tho department ma v return t he record for i'urt her consid- 
eration, pointing out what the law is and how' it should be applied. In such event 



504 QUESTIONS OF LAW. 

the court is not justified in disregarding the law because an application of the same 
may reach a result at variance with the individual beliefs of a majority of its members. 
It is only right and just for the court to accept the law as laid down to it by proper 
authority and then to come to its findings and sentence anew accordinglv, as was done 
in this case." C. M. O. 25, 1916, 4, quoted approvingly in file 26251-12159, Sec. Navy, 
Dec. 9, 1916. 

5. Same— Weight of decisions of the Secretary of the Navy regarding questions of law. 

See Promotion, 188; Questions of Law, 3, 4; Secretary of the Navy, 39. 

6. Same— Questions of law arising before courts-martial forwarded to Judge Advocate 

General. See Records of Proceedings, 59; Secretary of the Navy, 39. 

7. Examining boards — Questions of law arising before examining boards. See Marine 

Examining Boards, 12; Promotion, 188. 

8. Judge Advocate General — All questions involving points of law "concerning the 

personnel" shall be examined and reported upon by the Judge Advocate General. 
See Coast Guard, 1; Judge Advocate General, 14, 17, 33. 

9. Marine Examining Boards— Questions of law arising before Marine Examining 

Boards. See Marine Examining Boards, 12; Promotion, 188. 

10. Naval Examining Boards— Questions of law arising before Naval Examining Boards. 

See Marine Examining Boards, 12; Promotion, 188. 

11. Personnel — Questions involving points of law "concerning the personnel" of the naval 

service. See Coast Guard, 1: General Orders, 3; Judge Advocate General, 
14, 17, 33. 

12. Secretary of the Navy— Weight of decisions regarding points of law. See Promo- 

tion, 188; Secretary of the Navy, 39. 

13. Settlement of accounts— Weight of decisions of Comptroller of the Treasury. See 

Comptroller of the Treasury, 10. 

QUIBBLES. 

1. Officer's defense— Consisting of. See Officers, 116. 

QUORUM. 

1. Nolle prosequi — Not necessary to have a quorum present in a trial by general court- 

martial to enter a nolle prosequi. See Court, 140; Nolle Prosequi, 12. 

2. Procedure— Should the membership of a general court-martial be reduced below the 

legal number, the court shall be adjourned and a report made to the convening au- 
thority. (R-769(7)). See Challenges, 22; Court, 141. 

3. Reconvening of a general court-martial— Not practicable for the court to be recon- 

vened as it was reduced below the legal minimum. See Court, 142, 143. 

4. Same— Revision was not practicable for the reason that one of the original members 

who sat during the trial of the accused had since been relieved, leaving only four- 
less than a quorum — qualified to take part in revision. File 6401-02, J. A. G., July 
22, 1902; 20 J. A. G. 563. 

RAPT, TARGET. See Target Rafts. 

RAILROAD TICKETS. 

1. Procured— With fraudulent intent, knowingly and willfully appropriating. CM. O. 

17, 1910, 3-5. 

2. Refund for unused tickets — Court-martial prisoners, not having used the full amount 

of the transportation furnished by the Government, are not entitled to the cash value 
of the unused portions thereof but refund should be made to the Government. File 
9160-6157, Sec. Navy, May 29, 1916. 

RANGE FINDER. 

1. Willful destruction of— By a paymaster's clerk who was tried by general court- 
martial. C. M. O. 37, 1912. 

RANK. See also Precedence; Titles. 

1. Accused— Rank of accused should be included in sentence. C. M. 0. 14, 1915, 2. See 

also Designation of Accused, 2-4; Sentences, 33. 

2. Advancement in rank only. See Commissions, 9. 

3. Chiefs of bureaus. See Bureau Chiefs, 8-13. 

4. Civil War service. See Civil War Service, 5, 6. 

5. Date of— Officer an additional number in his grade. See Additional Numbers, 1. 

6. Deck court officers— Rank a legal requirement. See Deck Courts, 10, 46. 



RANK. 505 

7. Dental surgeons. See Dental Surgeons, 9. 

8. Examining boards. See Marine Examining Boards, 16; Naval Examining 

Boards, 17. 

9. Marine examining boards. See Marine Examining Boards, 16. 

10. Marine retiring boards. See Marine Retiring Boards, 2. 

11. Naval examining boards. See Naval Examining Boards, 17. 

12. Naval retiring boards. See Naval Retiring Boards, 2. 

13. Navy Register — Officer's rank is not affected by his position on the Navy Register. 

See Navy Register, 2. 

14. Precept— Error in stating rank, title, or relative position in precept will not affect the 

validity of precept. See Challenges, 15. 

15. Rear admirals — Rank of rear admirals of the senior and lower nines. See Rear 

Admirals, 3. 

16. Retiring boards. See Marine Retiring Boards, 2; Naval Retiring Boards, 2. 

17. Title — Only line officers have the title as well as the rank, while staff officers have the 

title of the grade to which they belong in their own corps, and have assimilated rank 
in order to compare them with line officers. File 22724-16: 1, J. A. G., Apr. 24, 1911, 
p. 4. See also Titles, 1. 

RANK AND GRADE DISTINGUISHED. See Grade and Rank. 

RAPE. 

1. "Assault with intent to commit rape "—Paymaster's clerk tried by general court- 

martial. CM. 0.35, 1913. 

2. Enlisted man— Charged with. G. C. M. Rec. 29178. 

3. Insanity— Defense of insanity in the offense of rape. C. M. O. 24, 1914, 16. See also 

Insanity, 33. 

4. Intent. See Intent, 49. 

RATE OF ACCUSED. 

1. Sentence— Should be included in. C. M. 0. 14, 1915, 2. See also Designation of Ac- 
cused, 2-4; Sentences, 33. 

RATE OF PAY. 

1. Deck court records— Should indicate rate of pay. C. M. 0. 12, 1915, 7. 

RATIFICATION. 

1. Fraudulent enlistment. See Fraudulent Enlistment, 75, 



76. 



RATING. 

1. Landsman— Rating of landsman abolished for seaman branch. See Landsman. 

2. New — Congressional action necessary to establish new rating— Concerning the establish- 

ment of the rating of chief printer in the Navy, it was said by the Judge Advocate 
General: "It is my opinion that 'it is necessary to secure congressional action to 
establish a new rate in the Navy with a new rate of pay.' In this connection there 
is quoted the following extract from the naval appropriation act approved May 13. 
1908 (35 Stat. 127): 'The pay of all active and retired enlisted men of the Navy is 
hereby increased ten per centum * * * and all pay herein provided shall remain 
in force until clanged by act of Congress.'" File 26509-106, J. A. G., Oct. 17, 1913. 

3. Reduction in rating— By court-martial sentence. See Reduction in Rating. 

RATIONS. 

1. Components of, etc. See File 21177 : 3, J. A. G., Jan. 25, 1911. 

REAPPOINTMENT OF DISMISSED OFFICERS. See Dismissal, 23; Legislation, 
5; Officers, 39. 

REAPPOINTMENT OF MIDSHIPMEN. See Midshipmen, 70-73. 

REAR ADMIRALS. 

1. Lower nine — Pay of. See Rear Admirals, 2. 

2. Pay — A rear admiral carried as No. 11 on the list of rear admirals of tho Navy is not 

entitled to be credited with pay as a rear admiral of the fir^t nine in consequence 
of three rear admirals of the first nine having boon designated -by the President for 
the rank and pay of admirals in the Navy, pursuant to provisions of the naval appro- 
priation act of March 3, 1915. Sinco an officer designated under the provisions of 
the above act keeps his place on the list of rear admirals all the time no vacancy is 
created and the law also expressly provides that no vacancy will thereby be created. 
File 26254-1738, Sec. Navy, Mar. 20, 1915; C. M. 0. 12, 1915, 12-13. 



506 REAR ADMIRALS. . 

3. Rank of upper and lower nines— Rear admirals for pay purposes are divided into 

two classes, namely, rear admiral of the senior nine and rear admiral of the lower 
nine. However , there is no difference in the rank of such officers other than as among 
themselves, the same as in other grades of line officers, this being regulated by date of 
commission. Accordingly, a captain on the active list retired with the rank of the 
next higher grade is entitled to retirement merely as rear admiral; and the question 
whether or not he is a rear admiral of the senior nine or of the lower nine is one which 
relates merely to the rate of pay to which he may be entitled. File 26253-460: 1, May 
13, 1916. 

4. Retired rear admiral— Tried by general court-martial. C. M. O. 41, 1915. 

5. Senior nine — Pay. See Rear Admirals, 2,3. 

6. Upper nine — Pay. See Rear Admirals, 2,3. 

REASON BEHIND THE RULE OF ADMISSIBILITY OF CONFESSIONS. See 

Confessions, 21. 

REASONABLE DOUBT. 

1. Definition— It has been held that "attempts to explain the term 'reasonable doubt ' do 
not usually result in making it any clearer to the minds of the jury" (Miles v. U. S., 
103 U. S. 312). Nevertheless the Federal courts have given several clear and com- 
prehensive definitions which may properly be adopted and applied by naval courts- 
martial. 

The definition of reasonable doubt, as published in Forms of Procedure, 1910, p. 
137, is as follows: 

"By reasonable doubt is intended not fanciful or ingenious doubt or conjecture, 
but substantial, honest, conscientious doubt, not removed by material evidence 
in the case." 

At the same place, Forms of Procedure quotes the following definition of a Federal 
court (U. S. v. Newton, 52 Fed. Rep. 290): 

"It is an honest, substantial misgiving, generated by insufficiency of proof. It 
is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or jury, 
and unwarranted by the testimony; nor is it a doubt born of a merciful inclination 
to permit the defendant to escape conviction, nor prompted by sympathy for him 
or those connected with him." See also File 26251-11281, Sec. Navy, Dec. 9, 1915. 

The following definitions have been sustained by the Supreme Court: 

"A reasonable doubt is not an unreasonable doubt— that is to say, by a reasonable 
doubt you are not to understand that all doubt is to be excluded; it is impossible 
in the determination of these questions to be absolutely certain. You are required 
to decide the question submitted to you upon the strong probabilities of the case, 
and the probabilities must be so strong as not to exclude all doubt or possibility of 
error, but as to exclude reasonable doubt." (Dunbar v. U. S. 156 U. S. 199.) 

"The court charges you that the law presumes the defendant innocent until proven 
guilty beyond a reasonable doubt. That if you can reconcile the evidence before 
you upon any reasonable hypothesis consistent with the defendant's innocence, you 
should do so, and in that case find him not guilty. You are further instructed that 
you can not find the defendant guilty unless on all the evidence you believe him guilty 
beyond a reasonable doubt. 

" The court further charges you that a reasonable doubt is a doubt based on reason, 
and which is reasonable in view of all the evidence. And if, after an impartial com- 
parison and consideration of all the evidence, you can candidly say that you are not 
satisfied of the defendant's guilt, you have a reasonable doubt; but if, after such 
impartial comparison and consideration of all the evidence, you can truthfully say 
that you have an abiding conviction of the defendant's guilt, such as you would be 
willing to act upon in the more weighty and important matters relating to your own 
affairs, you have no reasonable doubt." (Hopt v. Utah, 120 U. S. 439.) 

It will be noted that the definition here given provides that if the evidence can be 
reconciled upon any "reasonable" hypothesis consistent with the defendant's inno- 
cence, he should be acquitted. In the same case the Supreme Court made the fol- 
lowing comment with reference to the general subject: 

" Out of the domain of the exact sciences and actual observation there is no absolute 
certainty. The guilt of the accused, in the majority of criminal cases, must necessarily 
be deduced from a variety of circumstances leading to proof of the fact. Persons of 
speculative minds may in almost every such case suggest possibiities of the truth 
being different from that established by the most convincing proof. The jurors are 
not to be led away by speculative notions as to such possibilities." 



REASONABLE DOUBT. 507 

A definition which is believed to be very satisfactory, and which was quoted to 
the court in a recent case, is the following: 

"A reasonable doubt of guilt is a doubt growing reasonably out of the evidence, 
or the lack of it. It is not a captious doubt; not a doubt engendered merely by sym- 
pathy for the unfortunate position of the defendant, or a dislike to accept the responsi- 
bility of convicting a fellow man. If. having weighed the evidence on both sides, 
you reach the conclusion that the defendant is guilty to that degree of certainty that 
would lead you to act on the faith of it in the most important and critical affairs of 
your life, you may properly convict him. Proof beyond a reasonable doubt is not 
proof to a mathematical demonstration. It is not proof beyond the possibility of 
mistake. If such were the standard of evidence required, most criminals would go 
unwhipped of justice." (U. S. v. Youtsey, 91 Fed. Rep. 868.) C. M. 0. 19, 1915, 6-7. 
See also G. C. M. Rec. 30485, pp. 693, 696, 831-832. Corn-pare obiter dictum in Fid. 
Mut. Life Assn. v. Mettler (185 U. S.317). 

2. Fraudulent enlistment. See Fraudulent Enlistment, 81. 

3. Promotion — The burden of proving fitness for promotion beyond a reasonable doubc 

is upon the candidate. See Promotion, 19-21. 

4. Same— Theorv of Government proving beyond a reasonable doubt the unfitness of 

the candidate. See Promotion, 19. 

RECEIPTS. 

1. Pay receipts— Destroyed by a paymaster's clerk, who was tried by general court-martial. 

C. M. 0.26, 1915. 

2. Records of proceedings— Judge advocate should secure receipt or waiver of copy of 

record of proceedings from accused. See Records of Proceedings, 32. 

RECEIVING SHIPS. 

1. Cavite, P. I.— Service on, is not sea service. See Pay Clerks and Chief Pay Clerks, 3. 

2. Prisoners — Status of prisoners on board receiving ships awaiting trial. See Prisoners, 4 

RECESS. 

1. Appointments. See Commissions, 29; Pay, 82. 

2. Record of proceedings— Shall show that court reconvened after recess as well as fact 

that court took a recess. C. M. 0. 15, 1910, 5. 

3. Witness— On stand at beginning of recess cautioned that oath is still binding at end 

of recess. C. M. O. 47, 1910,5. 

4. Same— Numbering of questions. See Record of Proceedings, 95. 

RECESS APPOINTMENTS. See Commissions, 29; Pay, 82. 

RECOIL CYLINDERS. 

1. Ordnance officer— Tried by general court-martial for not properly inspecting recoil 
cylinders to insure that they were filled. See Ordnance Officers, 1. 

RECOMMENDATIONS TO CLEMENCY. See Clemency. 

RECONSIDERATION. 

I. Comptroller of the Treasury's decision. See Comptroller of the Treasury, 11 

RECONVENING. 

1. Boards, examining— Reconvening on own initiative. See Naval Examining 

Boards, 18. 

2. Boards of Inquest. See Boards of Inquest, 7. 

3. Boards of investigation. See Boards of Investigation, 16. 

4. Court reconvening of itself. See Court, 147-149. 

5. Courts of inquiry. See Courts of Inquiry, 47. 

6. Dissolved court. See Convening Authority, 52: Court, 09-71, 144. 

7. Error in name of accused— Recon von ins of court after I rial has boon finished, for 

the purpose of re-forming its finding and sentence, on account of error in name of 
accused in specification and in the evidence: and permitting a witness to give addi- 
tional testimony after having pronounced it correct and to recorreet it, are Irregu- 
larities in procedure. File 20287-494. 

8. Exigencies of the service— Prevented reconvening. See Court. 142, 140. 

9. General court-martial— Could not to reconvened owing to exigencies of service. 

See Convening Authority, 51; Court, 146. 
10. Same— Reconvening of itself. See Court, 147-119. 

II. Same— Reduced below legal minimum. See Court, 143. 



508 RECONVENING. 

12. Naval Examining Boards— On own motion. See Naval Examining Boards, 18. 

13. Quorum— Reconvening of court impracticable as membership was reduced below 

legal minimum. See Court, 142. 

14. Sentence— Adjudged prior to dissolution may be approved. See Court, 68-71, 144. 

15. Summary courts-martial— Reconvening by commander in chief. C. M. O. 29, 
1915, 10. See also Reconvening, 16. 

16. Same— By senior officer present— Wh ere the commander in chief of a fleet or squadron, 

in reviewing the records of summary courts-martial, isof theopinion that the sentence 
is entirely inadequate, he has the power to refer the record back to the convening 
authority with directions to reconvene the court for reconsideration of the sentence. 
File 2214-13, Sec. Navy, March 22, 1906; C. M. O. 29, 1915, 11. See also File 26287- 
2100-1/2:1, Sec. Navy, Oct. 7, 1914. 

17. Same— Reconvening of itself. See Court, 149. 

RECORD OF A "COURT-MARTIAL" CONVENED AT NAVAL ACADEMY. 

1. Copy— Supplied Court of Claims on proper call. File 4051-3, J. A. G., July 1, 1909, p. 3. 

RECORD OF ACCUSED. 

I. Clemency. See Clemency, 48-52. 

RECORDS OF COURTS OF INQUIRY. See Courts op Inquiry, 20. 
RECORDS OF GENERAL. COURTS-MARTIAL. See Record of Proceedings. 

RECORD OF PROCEEDINGS. 

1. Accused — Record of proceedings should show affirmatively that accused was present 

during his trial (See Accused, 1-9); that he had opportunity to cross-examine wit- 
nesses of prosecution (See Constitutional Rights of Accused, 16); that he was 
warned as to the effects of his plea of " guilty" (See Accused, 64; Arraignment, 33) ; 
that he did not desire to offer any evidence, if such be the case (C. M. 0. 14, 1910, 8; 
15, 1910, 9) ; that he was not warned or withdrew after being a witness ( See Accused, 
63); that if he desires to be a witness in his own behalf he goes on the stand at his own 
request (C. M. O. 37, 1909, 8); that he was afforded an opportunity to challenge (C. 
M. O. 37, 1909, 8; Challenges, 18); that he was ready for trial (C. M. O. 37, 1909, 8); 
that he was present when precept and modifications thereof were read (See Accused, 
1-9) ; that he was asked if he desired counsel and, if so, that counsel entered (See Coun- 
sel, 2, 47); that when he pleads "guilty" he does not desire to offer any evidence 
in extenuation as to character or of a strictly palliative nature (C. M. O. 14, 1910, 8. 
See also C. M. O. 15, 1910, 9). 

2. Same— Entitled to a copy of record of proceedings. See Record of Proceedings. 

32-37. 

3. Aloud— "When record states a document was read, it is understood that it was read 

aloud. See Aloud, 1. 

4. Amendments. See Corrections, 4, 5. 

5. Arguments— Admissibility of evidence and upon interlocutory proceedings. See 

Arguments, 4. 

6. Same— Judge advocate and counsel in closing. See Arguments, 1-4. 

If the judge advocate and accused do not wish to make a closing argument it should 
be so stated in the record. G. C. M. Rec. 29934. 
Copy of argument appended to record of proceedings. See Arguments, 5. 

7. Army trial— Record as evidence. See Army, 13. 

8. Arraignment. See Arraignment, 31. 

9. Arrest— In proper cases record should show accused was released from arrest and 

restored to duty. See Arrest, 27; Convening Authority, 4. 
10. Authentication— Courts of inquiry record. See Court of Inquiry, 4, 43. 

II. Same— Deck courts— Signed by deck-court officer only. (Forms of Procedure, 

1910, 180). 

12. Same— General courts-martial. See Authentication of Sentences; Court, 175; 

Members of Courts-Martial, 1, 12, 48. 

13. Same— Each member of the court and judge advocate signed after the recording of 

the sentence and again after recording an additional finding and recommendation. 
The department held that one set of signatures would have been sufficient. C M. O. 
78, 1905. 



RECORD OF PROCEEDINGS. 509 

14. Same— The sentence having been recorded, the proceedings in each separate case tried 

by the same court are required by law to be signed by all the members present when 
the judgment is pronounced, and also by the judge advocate. (R-810.) 

In a certain case it was noted that at the close of the second day's proceedings the 
record was authenticated by all the members of the court and the judge advocate. 

The third day the witnesses who had previously testified were called before the 
court to verify their testimony; the record of proceedings of the previous day was 
read, an amendment made therein and then approved; but the record of the third 
day's proceedings, which also completed the trial, shows that it was authenticated 
by only the president and the judge advocate. 

When the sentence has been recorded, the proceedings in each separate case tried 
are required by law to be signed by all the members present when the judgment is 
pronounced, also by the judge advocate. C. M. 0. 14, 1910, 10. 
The judge advocate having neglected to sign the general court-martial record it 
was returned for his signature. File 11137-02; 22 J. A. G. 72. 

15. Same — Summary courts-martial. See Summary Courts-Martial, 4. 

16. Same — A member of a summary court-martial may be ordered to sign the record. 

See Members of Courts-Martial, 48. 

17. Bad-conduct discharge — Brief synopsis of service and offenses of accused to be spread 

on record. See Bad Conduct Discharge, 10, 11. 

18. "Behind record"— Department declined to go behind the record. C. M. O. 6, 1915, 

6. See also Jeopardy, Former, 38 (p. 302); Judge Advocate, 105. 

19. Binding. See Binding of Court-Martial Records. 

20. Certificate of medical officer. See Confinement, 5. 

21. Challenges. See Challenges, 18. 

22. Charges and specifications— Original charges and specifications should be prefixed, 

not appended, to the record. See Charges and Specifications, 85. 

23. Same — Date accused received copy should be entered on record. See Charges and 

Specifications, 86. 

24. Civil courts— Requesting copies of. See CrviL Courts, 2; Courts of Inquiry, 12; 

General Order No. 121, Sept. 17, 1914, 23. 

25. Clemency, recommendations to. See Clemency, 47. 

26. Clerical errors— Clerical errors may be amended by the court without the presence 

of the accused, but they are not to be corrected in an informal manner by erasure 
or interlineation. The legal procedure is for the proper officer to reconvene the court, 
calling its attention in the order for reassembling to the error requiring correction, 
and for the court, on reassembling, to continue the record by a report of the pro- 
ceedings of the additional session in which the amendment is made. (R-838 (3).) 
C. M. O. 5, 1912, 14. See also Accused, 8. 

27. Clerical omissions— Of important steps in the proceedings. C. M. O. 55, 1910, 9; 

15, 1910, 9. 

28. Clerks or reporters. See Clerks or Reporters of General Courts-Martial. 

29. "Clips"— Should not be used in binding records. See "Clips," 1. 

30. Complete in itself— The record of proceedings of each case must be complete in itself, 

without dependance on or reference to any other. C. M. 0. 15, 1910, 5-6; 17, 1910, 10. 

31. Contents of general court-martial record— The record of proceedings in each case 

tried shall show that at least a quorum of five members of the court was present during 
the trial; that the accused was furnished a copy of the charges and specifications 
indicting him; that the orders detailing the members were read aloud in the presence 
of the accused; that he was afforded an opportunity to challenge members: and that 
the members, judge advocate, reporter or clerk, and witnesses wore duly sworn. 
It shall further show the arraignment, pleas, motions, objections made and grounds 
therefor, all testimony taken and documentary evidence received . decisions and orders 
of the court, adjournments, closing arguments, findings, and sentence or acquittal; 
in short, the entire proceedings of the court which are necessary to a complete under- 
standing by the. reviewing authority of the whole case and every incident material 
thereto. (R-827.) 

It is most necessary that the record show every part and feature of the proceedings 
material to a complete history of the trial, in order that the reviewing officer may have 
a correct understand ing as to the justice of the finding and sentence, and ( his involves 
a correct understanding both of the circumstances of the ease and the questions of 
law arising in the course of the investigation. C. M. O. 6, 1909, 3; 55, 1910, 9. 



510 RECORD OF PROCEEDINGS. 

32. Copy of— Right of accused to— On November 24, 1908, the department issued the 

following order: 

"Owing to the great demand made on the department by persons tried by general 
court-martial or their authorized representatives, for copies of the record of proceedings 
of their trial, which, owing to the lack of sufficient clerical force , it is difficult to supply, 
it is directed that hereafter, in each case tried, the judge advocate secure from the 
accused a waiver of his right to a copy of the proceedings, or, if the accused desires 
a copy, the record of proceedings be made in duplicate, and a copy furnished to the 
accused at the time of his trial. The finding, sentence, and action of the convening 
authority not to be furnished him until after the publication of the sentence, or, in 
trials ordered by the department, it will be furnished by the department upon appli- 
cation of the accused. 

" The waiver of the right to a copy of the proceedings, or, when a copy is furnished, 
a receipt therefor, will in each case be attached to the record when forwarded to the 
department." C. M. O. 21, 1909, 2-3. See also C. M. O. 47, 1910, 9; 21, 1910, 11; 8, 
1911, 7; 1, 1912, 4; 1, 1913, 5; 23, 1916, 2; File 20836-7:4, J. A. G., Mar. 3, 1910. 

33. Same — The waiver or receipt for the copy of the record furnished the accused should 

be appended, not prefixed, and should be the last document appended to the record. 
C. M. O. 19, 1911, 4. See also File 26251-11604, Sec. Navy, F"eb. 18, 1916; C. M. O. 
25, 1916. 

34. Same— Furnished to civil courts. See Civil Courts, 2; Courts of Inquiry, 12; 

General Order No. 121, Sept. 17, 1914, 23. 

35. Same — In a case where an accused (paymaster's clerk) had received his copy and 

later his attorney made a request for another the department refused to grant such 
request but informed attorney that he could have a copy made at his own expense. 
File 26251-4858:22, Sec. Navy, Apr. 19, 1916. 

36. Same — Copy of record of proceedings should not be furnished an accused where, during 

the course of the trial, the charge is withdrawn. File 26504-118, Sec. Navy, Dec. 
22, 1911. 

37. Same— Copy was furnished accused, the records proving this fact. Later, the accused 

claimed he had not received a copy, and requested that he be furnished same. Depart- 
ment stated that it was "willing that he have an additional copy provided he pay 
for copying same," etc. File 26251-314:1, Sec. Navy, Oct. 9, 1916. 

38. Corrections. See Corrections, 4, 5. 

39. Counsel. See Counsel, 2, 47. 

40. Court cleared— When the court is cleared for the purpose of examining the written 

statement of the accused, it should be stated in the record that the court was cleared 
for such purpose, and not merely that the "court was closed," or that the "court 
was cleared." C. M. O. 28, 1910, 6. See also Court, 16, 20. 

41. Court must be legally constituted— The record must show on its face that the 

court is legally constituted. See Court, 43. 

42. Court of inquiry— Record of proceedings. See Court of Inquiry, 12, 17, 18, 43. 

43. Cover page of record. See Cover Page of Records. 

44. Date — Accused received charges and specifications, should be entered on record. C. 

M. 0.17, 1910,5. 

45. Same— Date on cover sheet should be correct. C. M. O. 27, 1913, 12. See also Cover 

Page of Records, 2. 

46. Death of member— Of a summary court-martial before signing. C. M. 0. 12, 1915, 8. 

See also Members of Courts-Martial, 24. 

47. Deck courts. See Deck Courts, 17, 24, 31, 47. 

48. Department— Declined to go behind the record. C. M. O. 6, 1915, 6. See also Judge 

Advocate, 105. 

49. Documents— Original or certified copies of documents introduced in evidence must 

be appended even if accused is acquitted. C. M. 0. 16, 1908; 41, 1914, 4, 5. 

Record must show accused had opportunity to object to introduction of docu- 
mentary evidence. See Evidence, Documentary, 45. 

50. Same— When the record states that a paper, document, or testimony was read, it is 

understood that it was read aloud. See Aloud. 

51. Same — Not to be appended unless offered in evidence. See Evidence, Documentary, 

45. 

52. Same — Used in evidence, original or certified copy should be appended and notation 

made in record to this effect. See Evidence, Documentary, 45; Service Records, 
23. 



RECORD OF PROCEEDINGS. 511 

53. Errors in record— President, members, and judge advocate responsible for errors in 

general court-martial record (see Record of Proceedings, 54); misspelled words 
(C. M. O. 27, 1913, 11; 28, 1915); judge advocate should make correct entries (see Judge 
Advocate, 13); letter of transmittal and charges and specifications read ''original/?/ 
pre/erred" instead of "original prefixed" (C. M. O. 27, 1913, 11); clerical omissions of 
important steps in the proceedings (C. M. O. 55, 1910, 9; 15, 1910, 9); clerical errors 
(C. M. O. 47, 1910, 5; 28, 1910, 7); previous conviction introduced but omitted inad- 
vertently from record may be entered on record in revision as it was a clerical error 
(see Previous Convictions, 5); errors in (C. M. O. 74, 1899, 36, 1905, 3); court, being 
already cleared, was still further cleared for deliberation three separate times (C. M. 
O. 78, 1905, 1); "negligently made and kept up" (C. M. O. 74, 1899). See also 
Record of Proceedings, 65, 66, 77, 78, 80, 102. 

54. Same — The members of the court, as well as the judge advocate, are responsible for 

errors appearing in the record of proceedings. C. M. O. 55, 1910, pp. 9-10; 14, 1913, 
p. 5; 27, 1913, p. 12; 17, 1915, 2; 6, 1916; 10, 1916. 

55. Evidence— A record of proceedings is not competent evidence in another trial. See 

Evidence Documentary, 43, 44; False Swearings, 5; Witnesses, 52 (p. 651). 

56. Same— Army record of proceedings. See Army, 13; Evidence, Documentary, 43. 

57. Evidence in extenuation — The accused went on the stand at his own request as a 

witness in extenuation of his acts, but the entry on the record does not indicate that 
he was on the stand in extenuation, as required by the Forms of Procedure, 1910, 
p. 36 (see also C. M. O. 8, 1911. 4-6). C. M. O. 17, 1915, 2. 

58. Exceptions or protests— Not to be entered on record. See Bills of Exceptions, 1; 

Exceptions, 2. 

59. Final disposition of records— The records of proceedings of all courts-martial shall 

be forwarded direct to the Judge Advocate General by the reviewing authority after 
acting thereon, or in the case of general courts-martial convened by the Secretary 
of the Navy, by the presiding officers of such courts. All communications pertaining 
to questions of law arising before courts-martial, or to the proceedings thereof, which 
may require the action of the department, shall likewise be forwarded direct by such 
presiding officers . (R-850) . 

After the proceedings and sentence, with the recommendation to clemency, if any, 
have been signed, the action of the court, whether an adjournment or the taking up 
of a new case, shall be recorded, and this entry having been authenticated by the 
signatures of the president and the judge advocate, the record shall be forwarded 
by the judge advocate to the convening authority, or, in the United States, where the 
court is convened by order of the department, direct to the Judge Advocate General. 
(R-812.) 

60. Same — Deck courts. See Deck Courts, 47. 

61. Same— Summary courts-martial. See Court, 149; Summary Courts-Martial, 64-66. 

62. Findings. See Findings. 

63. "First day"— Entry on record of proceedings. C. M. O. 38, 1914, 2. See also Record 

of Proceedings, 89. 

64. Indexes. See Index. 

65. Infirmities of record— The department stated in part, there are certain infirmities 

of record, but it is not thought necessary to comment upon them, as none is of such 
character as to make it proper that any essential part of the proceedings be set aside 
or that the sentence be reduced. C. M. O. 173, 1902. 

66. Irregularities. C. M. O. 37, 1909, 7-8; 55, 1910, 9; 28, 1910, 7. 

67. Judge advocate— Responsible for errors in. See Judge Advocate, 110. 

Permitted to enter his opinion on record if court does not follow his advice. 
See Judge Advocate, 97. 

68. Length, of record— The department recorded a criticism upon the "wholly needless 

length of the record." G. C. M. Roc. 13370. 

69. Letter of transmittal— Letter transmitting copy of charges and specifications to 

commanding officer for delivery to accused, not to be read in court or appended to 
record. See Letters, 31. 

70. Lost record— Sentence may be carried into effect if approved before being lost . Filo 

27201-48, July 21, 1909; 26287-205; 20262-900, 991, 902. 003. 001 (lost G. C. 3. Records); 
26287-1839, 1839:1; 26287-1055:1; 26287-1906 (lost S. C. M. Records). 

71. Marking documents. Sec Charges and Specifications, 59, 

72. Medical officer's certificate— In casos of confinement exceeding ten days on reduced 

rations. See Confinement, 5. 

50756°— 17 33 



512 RECORD OF PROCEEDINGS. 

73. Members— Responsibility of members for errors in record. See Record of Proceed- 

ings, 54. 

74. Same— May be ordered to sign record. See Members of Courts-Martial, 48. 

75. Same— Responsibility of members that record is bound properly. See Binding of 

Courts-Martial Records. 

76. Same — Death of before signing record. See Members of Courts-Martial, 24. 

77. Minor errors— A critical examination of the entire record shows that technical errors 

of a minor nature were occasionally omitted by the court in dealing with the many 
objections interposed by counsel for the accused; but none of these errors were of a 
substantial character, nor are any of them, of such importance as to require special 
comment. C M. 0. 117, 1902, 8. 

The department stated, "numerous errors and irregularities are observed therein, 
relating chiefly to methods of examination of witnesses and preparation of the' 
record itself, which, in view of the department's recent action in calling the atten- 
tion of this same court to faults of a similar character, are not deemed sufficiently 
important to require enumeration or comment." C. M. O. 29, 1902. See also Criti- 
cism of Courts-Martial. 28. 

78. Minor irregularities. C. M. O. 28, 1915. 

79. Misspelled words. See Criticism of Courts-Martial, 40. 

80. Name of member omitted from record— The name of one of the members who 

authenticated the record was omitted from among those recorded as present at the 
beginning of the trial. This irregularity was not considered so serious, however, as 
to invalidate the proceedings, the judge advocate having furnished a certificate that 
the officer who signed the record and was not entered in the record as present during 
the proceedings was in fact present, and that the omission of his name was a clerical 
error. C. M. 0. 23, 1910,7. 

81. Nolle prosequi — Copy of record of proceedings should not be furnished accused where 

during the course of the trial, the charge is withdrawn. See Record of Proceed- 
ings, 36. 

82. Opinion— Of judge advocate allowed on record. See Judge Advocate, 97. 

83. Orders or copies of orders of president and members— Should not be appended 

to record. C. M. O. 35, 1900. 

84. Original— The department is reluctant to send out original records — "The record of 

the court's proceedings in this case is on file in the office of the Judge Advocate General 
of the Navy and is boimd in a permanent volume containing the original of 43 other 
trials by general courts-martial. The department is reluctant to send out original 
records of this character, which, in case of possible loss or injury, could never be 
replaced. File 26201-246, Sec. Navy, Dec. 1, 1913. See File 26251-10780, J. A. G., 
Aug. 16, 1915, where department transmitted to a IT. S. attorney an original record 
of a general court-martial; File 26251-11340:6, Sec. Navy, Jan. 13, 1916, where depart- 
ment offered an original general court-martial record to the Governor of a State; File 
8369-109:2,1916, where department sent an original court of inquiry record to 
Congress. See also Record of Proceedings, 85. 

85. Same— The Secretary of the Navy is by law responsible for the safekeeping of the 

department's records, and can not furnish same for use in civil courts. See Maurice 
v. Worden, 54 Md., 233. 

The department is reluctant to send out original records of general court-martial 
cases, which, in case of possible loss or injury, could never be replaced. File 26251-246 
Sec. Navy, Dec. 1, 1913. 

While the department will not furnish in the case of legal controversies, at the 
request of the parties litigant, copies of such records, it will, in proper cases, do so 
upon call of the court before which the litigation is pending. CM. O. 6, 1915 p 8: 
20, 1915, p. 6. 

If the court calls for copies of such records the request should be addressed to the 
Secretary of the Navy and should state that the copies are to be made at the expense 
of the party for whom furnisned, and should also state very clearly for what purpose 
the records are desired and what is the nature of the litigation in which they are to be 
used, as this information will be necessary for the consideration of the Secretary of 
the Navy in deciding whether or not conies of these records should be furnished. 
See File 12475-64, J. A. G., Aug. 9, 1915. See also 11 Op. Atty. Gen., 137; Record of 
Proceedings, 84. 



RECORD OF PROCEEDINGS. 513 

86. Pay— Notation must be made on record that checkage of pay has been made pursuant 

to the sentence. C M. O. 34, 1913, 5. Pay officer must sign such notation. CM. 
O. 34, 1913, 5. Theamount of such checkage should be shown. C. M. O. 24,1909,3. 
Rate of pay should appear on record . C. M. . 34, 1913, 6. See also Deck Courts, 
35-41. 

87. Pay account status — Made a part of summary but not general court-martial record. 

See Accused, 54. 

88. Pay officer's notation — When loss of pay adjudged by court and remitted under 

conditions specified in 1-4893. C. M. O. 36, 1914, 5. 

89. Preceding day's proceedings— Proceedings of preceding day shall be read and 

approved the following day. C. M. . 55, 1910, 9. 

90. Precept— Certified copy should be appended, not prefixed. C. M. O. 36, 1914, 6; 41, 

1914, 5. See also Precepts, 6. 

91. Same— Original precept of a general court-martial should never be appended to record. 

CM. 0.42:3. See also Precepts, 6. 

92. Same— Marking of . C M. 0.27, 1913, 12. See also Charges and Specifications, 

59; Precepts, 14. 

93. Previous convictions— Certified copy of should be appended. See Previous Con- 

victions, 4. 

94. Protests— Not allowed on record. See Exceptions. 

95. Questions— Should be numbered properly — The questions asked each witness shall 

be numbered consecutively throughout his examination. If the examination is 
interrupted by recess or adjournment and is resumed when the court reassembles or 
reconvenes, the numbering shall be continued. If, however, the first examination 
of the witness is completed and, later in the trial, he is recalled, the numbering of 
the questions asked on this later examination shall begin anew. C M. 0. 38, 1914, 2. 
See also C. M. O. 74, 1899, 1; 10, 1915, 6; G. C. M. Pec, 30084. 

96. Receipt of accused— For copy of record. See Record of Proceedings, 32, 33. 

97. Revision. See Corrections, 4; Revision, 30-32. 

98. Secretary of the Navy responsible for. See Record of Proceedings, 85. 

99. Senior officer present. See Senior Officer Present. 

100. Setting aside. See Setting Aside. 

101. Summary court-martial. See Summary Court-Martial, 64-69. 

102. Termination of trial— From several records of proceedings of general courts-martial 

received in the department it has been noticed that, when the accused and the judge 
advocate had laid their respective cases before the court, there was no entry made on 
the record indicating the termination of the trial. This circumstance should invari- 
ably be recorded. CM. 0.14, 1910,9. 

103. Waiver— Of accused to copy of record of proceedings. See Cover Page of Records; 

Record of Proceedings, 32. 

104. Witnesses — Record should show that court had an opportunity to question witnesses. 

CM. 0.36, 1914,6. 

105. Same— When the court has finished with a witness he shall be directed to retire, and 

a minute entered on the record to the effect that the witness withdraws to show that 
two witnesses are not in court at same time. C M. O. 51, 1914, 8-9. 

RECORDS OF THE DEPARTMENT. 

1. Alteration— It has been repeatedly stated to be against the policy of the department 

to alter official records, which should be kept inviolate; and, indeed, no alteration of 
the records could serve actually to change the facts as they existed. File 26510-225:1, 
J. A. G., June 10,1911. 

2. Amending or changing— The official records of the Navy Department should remain 

inviolate, and should not be changed a hundred years after the events they purport 
to record. Where it is alleged that the record of an officer is in error, the evidence in 
support of such claim may bo filed with his record, thus showing jusl what is claimed 
and just what authority there is for such claim. File 24413-5, J. A. C. July 12, 1913. 

3. Same— If the Bureau considers that an injustice has been done in this ease, due to an 
omission in the Navy Regulations on the subject of discharges, this mav ail'ord suffi- 
cient reason for amending the regulations so as to provide for future cases, but can 
not authorize the department to alter its record, which must show the true facts of the case. 
File 7657-214, J. A. G., Feb. 17, 1914. 



514 EECOEDS OF THE DEPARTMENT. 

4. Same— Ad vise d: It is contrary to the policy of the department to alter official records, 

but that there would be no objection to placing papers embodying an officer's claim 
with other papers relating to his case in the files of the department. File 26510-225:1, 
J. A. G., June 10, 1911. Seealso Civil War Service, 4. 

5. Same — Question of changing the record of midshipman dismissed by Secretary of 

the Navy so as to show resignation. File 5252-60 , J. A. G., Feb. 2, 1914. 

6. Attorneys— The department does not grant permission to attorneys to make prelimi- 

nary and informal examination of records, but will promptly furnish copies of papers 
or records upon call of the court before which the indictments are pending. File 
5467-S, Mar. 27. 1907. See also Records of Officers, 9. 

7. Same — The department is unable to comply with the request of attorneys that original 

correspondence be furnished them from the department's riles, notwithstanding 
their offer to eive any reasonable security for its custody and return. The law requires 
that the records shall be safely kept in the department, and the Secretary of the Navy 
is made personallv the custodian. (Secretary of the Xavv's letter published in 
Maurice v. Worden, 54 Md. 237.) See also File 12475-64, Aug. 9, 1915. 

8. Change of birthplace and citizenship— Of Chinese. See Citizenship, 11. 

9. Civil courts— Department promptly furnishes copies of records on proper call of civil 

courts. See Civil Courts, 2; General Order No. 121, Sept. 17. 1914, 23. 

10. Copies — Where copies of the department's records on file in the Office of the Judge 

Advocate General were requested. Held: It is not the practice of this office and it 
has not the means therefor to furnish copies of records on rile. File 3333-02, J. A. G., 
April 18, 1902: 20 J. A. G. 59. 

11. Date of birth— Of an officer— Change of. See Age, 4. 

12. History— The re cords of the Navy Department are an important part of the Nation's 

history. See Name, Change of, 5. 

13. Mark of desertion. See Mark of Desertion. 

14. Names, change of. See Name, Change of. 

RECORDS OF OFFICERS. See also Reports on Fitness. 

1. Admissions— By judge advocates of contents. See Reports of Fitness, 5. 

2. Clemency — Good record as a cause for clemency in a court-martial trial. See Clem 

ency, 48-52. 

3. Copies— A Member of Congress requested a copv of the report containing a tabulation 

of the unfitness, etc. File 26260-2076:6, Sec. Navy, Feb. 16, 1916. 

4. Same — If the accused (officer) should desire a copy of his service record, the original 

may be inspected by him, or his duly appointed representative, and a copy made. 
C. M. O. 29, 1915, 8. 

"The limited clerical force of the office of the Judge Advocate General will not 
admit of making copies of officer's records. Such records as you refer to are on file 
in this office and are open to the officer's nersonal inspection, *or that of his duly ap- 
pointed attorney, either of whom may copy or have copied the records in question?' 
File 26260-2488:2, J. A. G., May 4, 1916. See also File 26260-3314:4. 

5. Courts-martial— Evidence before. See Reports ox Fitness. 5-8. 

6. Court-martial order— Record of officers printed in court-martial orders. C. M. O. 

3, 1911. 2; 29. 1912, 1; 32, 1912, 2: 35, 1912, 1; 36, 1912, 2; 2, 1913, 1; 3, 1913, 2. 

7. Evidence. See Reports on Fitness, 5-8. 

8. Examining boards— Duty of. See Naval Examining Boards, 11. 

9. Former officer— "The record of the alleged former officer is available only for his 

personal inspection, or may be examined by some other person who has a power of 
attorney from the 'person whose record is desired '; or this department will furnish 
information therefrom to the same persons; provided that the statement as to the 
'purpose for which such information is desired, ' is 'deemed satisfactorv to the depart- 
ment. ' " File 26261-315:1, J. A. G., Sept. 21, 1916. 

10. Original records not sent out— "It is contrary to the policy of the Navy Department 

to send documents forming a part of official records to anv individual on request." 
File 26260-2488:2, May 4. 1916. 

11 . Removal of papers— Removal of papers from existing records of officers is not approved. 

File 4435-5, Sec. Navy, May 13, 1908. 

RECORDER OF A DECK COURT. See DECK Courts, 48, 58. 

RECORDER OF A SUMMARY COURT-MARTIAL. See Summart Courts-Mar- 
TIal, 70-74. 






REDUCTION IN RATING. 515 

RECRUITING. 

1. Accountability— Of recruiting officers for accepting or enlisting unfit or undesirable 

men. See File 7657-103. 

2. Army. See File 7657-103: 2, J. A. G., July 18, 1911. 

3. Assumed names— Recruiting officer properly refused to enlist an applicant under 

an assumed name. See Name, Change op, 5. 

4. Civilian interference— With recruiting. See Recruiting, 14. 

5. Destruction of posters— By civilians in. See Recruiting, 14. 

6. Fraudulent enlistment — Accused tells recruiting office of prior service, enlists and 

claims this as a defense. See Fraudulent Enlistment, 23. 

7. Fugitive from justice— Should not be enlisted. File 26524-207, J. A. G., Nov. 20, 

1915, and Nov. 22, 1915. See also Convicts, 2, 3; Fugitive from Justice. 

8. General court-martial — Marine recruiting officer tried by general court-martial. 

C. M. O. 19, 1915. 

9. Hospital apprentice— Recruiting officer of the Marine Corps enlisting a hospital 

apprentice for the Navy. File 1096-1, J. A. G., 1908. 

10. Marine Corps. See Marine Corps, 74; Recruiting, 15. 

11. Navy— Reports regarding. See File 7657-103:2, J. A. G., July 18, 1911, p. 6. 

12. Oaths— Administration of oaths by recruiting officers. See Oaths, 39, 48. 

13. Officers — Should explain law to applicants. See Fraudulent Enlistment, 78. 

Recruiting, 17. 

14. Posters and other literature— Mutilated in sections of city inhabited by the socialistic 

element. File 26254-1988:2, July, 1916. See also File 24694-3, Sec. Navy, July 27, 1916. 

15. Recruiting officers of Marine Corps — Duties defined. G. C. M. Rec. 30485, pp. 

77-89,471,517,564. 

16. Stragglers— Recruiting stations are not authorized to accept the surrender or delivery 

of stragglers or deserters, nor to furnish them with transportation or subsistence, but 
will direct such men to report at their own expense to the nearest navy yard or naval 
station. G. O. 110 (Revised, July, 1916), p. 5. 

17. Warning — Section 11 of Instructions for Recruiting Officers of the United States Navy, 

provides that "each recruit * * * shall be informed that if he has had previous 
service the fact will be known as soon as the papers in his case reach the Navy Depart- 
ment and that he will be tried by general court-martial for fraudulent enlistment 

* * *. , The recruit will also be informed that men who have been discharged for 

* * * disability or other reasons are not necessarily forever barred from reentering 
the service, but that an official request to be permitted to reenlist * * * will 
receive consideration" and that "if it is deemed advisable to reenlist him it will be 
authorized." Article 756, (3) United States Navy Regulations, provides that "no 
one who has already been in the naval or military service of the United States shall 
be enlisted without showing his discharge therefrom * * *." C. M. 0. 12, 1911,4 . 

REDUCTION IN RATING. 

1. Absence over leave. See Reduction in Rating, 18. 

2. Absence without leave. See Reduction in Rating, 18. 

3. Attempting to smuggle liquors. See Reduction in Rating, 18, 

4. Classification tables— For disrating. See Reduction in Rating, 42. 

5. Confinement— Reduction in rating and confinement not both to be included in same 

sentence of deck court or summary court-martial. See Deck Courts, 49. 

6. Deck Courts — Article 781(1), Navy Regulations, 1909, must be construed as supple- 

mentary to, but not in conflict with the statute defining powers of deck courts. File 
27217-787, J. A. G., May 18, 1912. 

7. Disrating. See Reduction in Rating, 42. 

8. Enlistment expired— A petty officer convicted of desertion and fraudulent enlistment 

was properly sentenced to reduction in rating, although his valid enlistment from 
which he deserted had expired prior to his trial. File 26251-6039. 

9. Failure to reduce petty or noncommissioned officer does not invalidate sen- 

tence^ — Failure to include reduction in rating in the sentence of a petty or noncom- 
missioned officer involving confinement is a violation of the Navy Regulations, and 
is a serious omission, but does not adversely affect the interests of the accused nor 
invalidate the sentence. C. M. O. 28, 1910, 5. 

10. Forfeiture of pay— Based on pay of reduced rating. Set REDUCTION in Rating, 30. 

11. Same— Reduction in rating is not to be considered as loss of pay within the meiuiing of 

A. G. N. 32. See Pay, 84; Reduction in Rating, 31. 



516 REDUCTION IN RATING. 

12. Fraudulent enlistment of a petty officer— A petty officer, having deserted, fraudu- 

lently enlisted and convicted of both offenses, the sentence should provide for reduc- 
tion in rating as of the original or legitimate enlistment since the department will 
cancel the fraudulent enlistment and require him to serve his sentence under the 
first enlistment as petty officer. C. M. O. 15, 1910, 7. 

13. Grade— Reduction in rating (or rank) is proper phraseology but the following phrase- 

ology has been approved: "To be reduced to the grade of private, United States 
Marine Corps." C. M. 0. 12, 1879; 28, 1881, 2. 

14. Improper rating— The accused was sentenced to be reduced to the rating of seaman 

(from electrician third class), whereas the rating below petty officer in the branch to 
which he belongs is landsman. The department held that the sentence was irregular. 
CM. 0.49, 1910, 14. 

15. Same— Accused was reduced to seaman gunner when he did not hold a certificate as 

such. See Seaman Gunners, 4. 

16. Same — The accused was promoted to water tender from the rating of oiler, to which 

rating he should be reduced. While his current enlistment record does not show this 
promotion it does show that the accused held a continuous-service certificate. This 
certificate shows that the previous rating held by the accused was that of oiler, and 
it should have been consulted by the court before sentence was adjudged. 

In view of the wording of the sentence the department holds that it was the intention 
of the court that the accused should be reduced to the next inferior rating to which 
the court could legally reduce him, and further holds that the words "that of fireman 
first class" are mere surplusage. (See 90 S. and A. memo., 831.] 

Subject to the foregoing remarks, the department approved the proceedings and 
sentence in this case, and directed that the "next inferior rating" to which the 
accused be reduced under the sentence of the court be that of oiler, as required by 
article 1693, United States Navy Regulations. [Navy Regulations, 1913, R-619]. 
C. M. 0. 1, 1913, 8; File 26287-1392, Sec. Navy, Dec. 4, 1912. See also File 20287-2841, 
Mar. 19, 1915. 

17. Same — A water tender was tried by summary court-martial on December 23, 1914. 

He was found guilty and sentenced "to be reduced to the next inferior rating, that 
of fireman first class " and to lose pay. The records of the Bureau of Navigation show 
that the accused was reenlisted in the rating of oiler October 28, 1908, and received a 
permanent appointment as water tender July 19, 1910, having been advanced to that 
rating from the rating of oiler. In view of the provisions of Navy Regulations, 1913, 
R-619(7), this man should have been reduced to the rating of oiler and not to the 
rating of fireman first class. The department remitted that portion of the sentence 
that related to reduction in rating. File 26287-2841, Mar. 19, 1915. 

18. Inappropriate — The sentence of "reduction to the next inferior rating" is deemed 

inappropriate to such offenses as "overstaying liberty," "absence without permis- 
sion," "attempting to smuggle liquor," "liquor in possession," etc., unless committed 
by a petty or noncommissioned officer; and even then it is appropriate only when, 
in the opinion of the court, the commission of the offense and the conduct record 
of the accused indicate that he can not be relied upon properly to perform all the 
duties of the rating in which he is serving. (R-619 (8).) See Op. J. A. G., July 19, 
1916. 

19. Incompetency— In the case of a person found guilty of incompetency, the sentence of 

disrating is mandatory, and such sentence is the only authorized punishment therefor. 
(R. 618(6).) 

20. Invalidate— Failure of a court to reduce a petty or noncommissioned officer when con- 

finement is also adjudged does not invalidate. See Reduction in Rating, 9. 

21. Liquor in possession. See Reduction in Rating, 18. 

22. Mandatory. See Reduction in Rating, 19. 

23. Noncommissioned officers. See Reduction in Rating, 32, 33. 

24. Officers— Any officer who absents himself from his command without leave, may, by 

the sentence of a court-martial, be reduced to the rating of an ordinary seaman. (A. 
G.N. 9.) G. 0.37 ; May 17, 1864. 

25. Same — An acting third assistant engineer was convicted of "Desertion" and sentenced 

to be "reduced to the rating of a fireman first class, to serve for the term of two years, 
and to forfeit all pay now due him." G. O. No. 39, July 16, 1864. 

An Acting Master's Mate was sentenced "to be reduced to the rate of ordinary 
seaman for fifteen (15) months," etc. G. O. 44, Dec 7, 1864. 

26. Same — The sentence of disrating officers is provided as the penalty in cases of "Absence 

from station and duty without leave," and should be imposed in no other cases. 
G. O. 61, June 24, 1865. 



REDUCTION IN RATING. 517 

27. Same — In returning the case of a warrant officer (boatswain) for a revision of the sen- 

tence the attention of the court was called to the fact that it might adjudge a sentence 
involving a substantial loss of pay, but if, in its opinion, such punishment were not 
adequate, attention was called to article 9 of the Articles for the Government of the 
Navy, which provides that, "Any officer who absents himself from his command 
without leave may, by the sentence of a court-martial, be reduced to the rating of 
an ordinary seaman." 

The court in revision decided to revoke its former sentence in this case and substi- 
tuted therefor the following sentence: 

"The court, therefore, sentences him, Boatswain , United States 

Navy, to be reduced to the rating of ordinary seaman." 

Inasmuch as the sentence adjudged in the case of this officer provided that he be 
reduced to an ordinary seaman, which deprives him of his position as a warrant officer 
in the United States Navy, and as article 53 of the Articles for the Government of the 
Navy (sec. 1624, Rev. Stat.) provides that no sentence extending to the loss of life or 
to the dismissal of a commissioned or warrant officer shall foe carried into execution 
until confirmed by the President, it was deemed advisable as a matter of policy, 
although not specifically required by the statute, to submit the record of the general 
court-martial in this case to the President of the United States, who, on April 3, 1916, 
confirmed the sentence of the court. C . M . . 1 1, 1916, 2. 

The court sentenced a boatswain "to be reduced to the rate of Mate in the U. S. 
Navy." Havingadjourned,itreconvened of itself, upon the advice of the judge ad- 
vocate, to reconsider the sentence, revoked its former sentence, and adjudged one 
involving dismissal. G. C. M. Rec. 9427 (1901). 

28. Others tnan petty and noncommissioned officers— Prior to July 15, 1915, if the 

general court-martial sentence of an enlisted man, who was not a petty or noncom- 
missioned officer, involved both imprisonment and discharge, it has been held by 
the department that to add to this sentence a reduction in rating caused the punish- 
ment thus inflicted to exceed the limitation of punishment as prescribed by the 
President of the United States. For this reason, when the sentence of an enlisted 
man, not a petty or noncommissioned officer, involved discharge, the court could not, 
in addition, without exceeding the limitation of punishment, reduce the man in 
rating for the same offense. This amounted to a hold ing that only petty or noncom- 
missioned officers should be reduced in rating by sentence of general court-martial, 
except in cases where the general court-martial adjudged a summary court-martial 
sentence. C. M. O. 21, 1902, 2; 29, 1902, 1; 52, 1902; 146, 1902, 2; 46, 1903, 1; 26, 1910, 
5; 20, 1913, 3; 34, 1913, 8. But on July 15, 1915, in C. N. R. No. 5, the following was 
added to the limitations (R-900): 

"(7) In the case of an enlisted man reduction to any inferior rating or rank in the 
branch to which he belongs may be added to any of the following limitations." 
See also Reduction in Rating, 35. 

29. Same — A fireman second class was sentenced to confinement at hard labor with cor- 

responding loss of pay, reduction in rating to coal passer, and dishonorable discharge; 
the department remitted a part of the confinement and loss of pay, and also the reduc- 
tion in rating, and then approved. 

The department stated that it was "at least doubtful whether a court is authorized 
to include reduction in rating in its sentence except in the" case of petty and non- 
commissioned officers. 

While the sentence as adjudged did not apparently exceed the limitations. "the 
punishment of reduction in rating is so different in character from that of confinement 
that it is difficult to compare it with the latter, and thus to determine whether or not 
the limitation of punishment authorized has been exceeded." C. M. O. 21, 1902, 2. 
But see R-900 (7) and Reduction in Rating, 28. 

30. Pay— "The department considers that the intent of article 30, Articles for the Govern- 

ment of the Navy, which limits the loss of pay that a summary court-martial may 
adjudge to the loss of three months' pay, is to limit the loss to three months' pay 
based on the pay of the accused in the ra I ing to which he has been red need . In ease's 
where the loss of pa v was based on the higher rating the departmenl reduced the loss 
of pav to conform with the above. C. M. O. 94, 1903, 1; 1, 1913, 7: Kile 26287-1372: 1, 
File 26287-2746, Sec. Navy. Apr. 29, 1915." C. M. O. 16. 1915. 4: File 26254-1834: 1, 
Sec. Navy, Sept. 15, 1915. See also C. M. O. 97, 1S97. But see R-900 (7); Reduction 
in Rating, 28. 



518 REDUCTION IN RATING. 

31. Same — "Disrating" alone is not, within the meaning of A. G. N. 32, to be regarded as 

involving a loss of pay, but as a reduction of rating only. See Pay, 84. 

32. Petty and noncommissioned officers— In all cases in which the sentence imposed 

on a petty officer involves confinement it should include reduction to one of the 
ratings below petty officer in the branch to which he belongs, and, in the case of a 
noncommissioned officer of the Marine Corps, to private. (R-816 (3).) C. M. O. 48, 
1895; 60, 1895; 139, 1897, 2; 154, 1900; 21, 1902, 2; 42, 1909, 6; 49, 1910, 14; 15, 1910, 7; 
28, 1910, 5; 1, 1912, 4; 23, 1912, 4; 6, 1913, 3; 25, 1914, 5; 49, 1914, 6; file 26251-10529, 
Sec. Navy, May 15, 1915; G. C. M. Rec., 28481, 28489, 28582. 

33. Same — Petty officer properly sentenced by general court-martial to confinement and 

reduction in rating. Convening authority (fleet) remitted reduction in rating but 
allowed confinement to remain as part of the sentence. Department disapproved of 
such procedure. C. M. O. 92, 1897. 

34. President — Confirmed sentence of a warrant officer involving reduction in rating to 

ordinary seaman. See Reduction in Rating, 27. 

35. Prior to July 15, 1915— General courts-martial not to adjudge unless (a) accused is 

petty or noncommissioned officer and sentence involved confinement; or (6) discharge 
is not adjudged, although included in limitation of punishment; or (c) sentence 
adjudged is one authorized for summary courts-martial. But on July 15, 1915, in 
C. N. R. No. 5, the limitations were amended so that reduction in rating or rank 
might be adjudged in the case of any rated man. See R-900 quoted in Reduction in 
Rating, 28. 

36. Purpose of reducing petty and noncommissioned officers— "The purpose of 

the direction" contained in Navy Regulations, 1900, article 1911 (3) [Navy Regula- 
tions, 1913, R-816 (3)] "being to prevent the confinement in naval prisons of men 
wearing rating badges, chevrons, or other marks indicating their status as such petty 
or noncommissioned officers, in order that the same may not be degraded in the eyes 
of the other men with whom they come in contact." C. M. O. 21, 1902, 2. 

37. Same — The department is of the opinion that it is prejudicial to the best interests of 

the naval service for petty and noncommissioned officers to be confined as prisoners 
in a naval prison and that particularly in view of the fact that imprisonment is accom- 
panied by loss of pay, except certain allowances, wherefore reduction in rating would 
not, in fact, in cases which included dishonorable discharge, increase the punishment 
awarded. The sentence should include reduction to the rating of landsman or 
private. C. M. O. 48, 1895. See also C. M. O. 60, 1895. Reduction in Rating, 28, 
35. 

38. Rating from which last advanced. See Reduction in Rating, 14-17, 42. 

39. Seaman gunners. See Seaman Gunners, 3. 4. 

40. Summary courts-martial. See Reduction in Rating, 17, 18, 19, 30, 35, 36, 37, 42. 

41. Surplusage. See Reduction in Rating, 16. 

42. Tables for disrating— It is noted that summary courts-martial in sentencing men to 

reduction in rating who were promoted to their present ratings from some inferior 
ratings other than ratings indicated by the classification table following Navy Regu- 
lations, 1913, R-619 (7), frequently fail to state this fact in the record. 

In order to secure uniformity in the reduction in rating of enlisted persons by sen- 
tence of summary courts-martial, the classification following Navy Regulations, 1913, 
R-619 (7), arranged to showin each case their "next inferior rating." shall be followed, 
unless the man's current enlistment record shows that he was promoted to his present 
rate from some inferior rating other than the one indicated by the table, in which 
case his reduction shall be to the inferior rating from which he was last advanced, 
and it shall be so stated in the record of the court (Navy Regulations, 1913, R-619 (7); 
Forms of Procedure, 1910, p. 162.) C. M. O. 29, 1914, 4. 

43. Uniformity in reduction. See Reduction in Rating, 42. 

44. Warrant officers — Reducing to rating of ordinary seaman by sentence of court- 

martial. See Reduction in Rating, 27. 

REENLISTMENTS. 

1. Acting warrant officers. See Acting Warrant Officers, 4. 

2. Deserters— Prior to act of August 22, 1912 (37 Stat., 356). See Deserters, 13; Deser- 

tion, 23-27, 117. 

3. Same— Subsequent to act of August 22, 1912 (37 Stat., 356). See Deserters, 14; 

Desertion, 28. 29; 114. 

4. Same— Desertei 1 from Marine Corps who served subsequent excellent enlistment. See 

Desertion, 114. 



REENLISTMENTS. 519 

5. Discharge for disability or other reason— Does not bar reenlistment if authorized. 

C. M. 0. 12, 1911, 4. See also Recruiting, 17. 

6. Minor— Pay. See Pay, 86. 

7. Retired enlisted men. See Retired Enlisted Men, 11. 

REEXAMINATION. 

1. Recommendation — Of examining board of no effect. See Naval Examining Boards, 
13. 

REFRESHING MEMORY OF WITNESSES. See Counsel, 56; Judge Advocate, 
129; Witnesses, 95-99. 

REFUSING TO OBEY THE LAWFUL ORDER OF HIS SUPERIOR OFFICER. 

1. Drunkenness— As a defense to. See Drunkenness, 36, 52. 

2. Enlisted men— Charged with. C. M. O. 92, 1905, 3; 37, 1909, 3. 

3. Malingering— The charge of " Refusing to obey the lawful order of his superior officer" 

is not of the same character or nature as the offense "Malingering," and therefore the 
latter is not a lesser degree of the former offense. See Guilty in a Less Degree 
Than Charged, 30, 40. 

4. Officers— Charged with. C. M. O. 35, 1905; G. C. M. Rec, 14462. 

5. Proof of— The accused was to be confined in the fireroom of a torpedo boat pending 

further action for a misdemeanor, that being the usual place for such confinement in 
the torpedo boat flotilla, and owing to the construction of the boats it was necessary 
for him to go into it without being forced to do so. 

The evidence for the prosecution fully sustained all the allegations of the specifica- 
tion, and no testimony was adduced on the part of the defense to offset this proof. 

The defense, however, by means of expert and other testimony endeavored to show 
that the accused was so much under the influence of liquor, having returned from 
liberty a few hours before the offense was committed, as to be incapable of understand- 
ing an order or having sufficient use of his mental faculties to intelligently obey or 
willfully disobey it. 

It appears that when the accused first refused to obey the order given him he said 
he would go down below but would not remain there and added that the fireroom 
was not a fit place to confine a man. When the serious nature of his oftense was 
explained to him he said he knew what he was doing and repeated his former state- 
ments and stated that he understood what he was being told and persisted in his 
refusal to obey the order, and he also stated that if sufficient men were brought he 
could be forced into the fireroom. 

From the foregoing it would appear that while the accused was so much under 
the influence of intoxicants as to be unfit for duty— and one who is under the influence 
of liquor in any degree, however slight it may be, is unfit to be intrusted with the 
important duties incident to the naval service — he was still able to reason in an intelli- 
gent manner and was accountable for his actions. It is a well-known principle of 
law that a man who voluntarily puts himself in a condition to have no control of his 
actions must be held to intend the consequences. 

Held: That a finding of guilty would have been justified in this case, and the court 
might then have recommended the accused to the clemency of the department . CM. 
O. 92, 1905, 3. 

6. Typhoid— Enlisted man tried by general court-martial for refusing to obey a lawful 

order to submit to an antityphoid vaccination. G. C. M . Rec. 24S93. 

7. Warrant officer— Charged with. C. M. O. 33, 1905. 

REGIMENTS. 

1. Deck courts— Convening of by regimental commanders. See Deck Courts, 10, 14; 

Summary Courts-Martial, 22. 

2. Summary courts-martial— Convening of by regimental commanders. See Sum- 

mary Courts-Martial, 22. 

REGULAR NAVY. 

1. Naval Militia— Status in relation to the regular Navy while on board naval vessels or 
on vessels loaned to States. See Naval Miutla., 35-41. 



520 REGULATIONS, NAVY. 

REGULATIONS, NAVY. 

I. Accounting officers— " The accounting officers in the performance of their duties are 

bound by rules prescribed by Congress, the same as are all other officers of the Govern- 
ment, and it has been decided that they are bound by Executive regulations. (U. S. 
v. Freeman, 3 How., 576; see aUo 16 Op. Atty. Gen., 619).'' File 26254-1451:11, Apr. 
12, 1915, p. 13. 

2. Alterations in. See Regulations, Navy, 16, 17. 

3. Annulling by Congress — Congress has not hesitated to annul Navy Regulations of 

which it did not approve as, for example, Executive order of November 12, 1908, 
limiting the duty of the Marine Corps to shore stations. File 27109. See also Act 
Mar. 3, 1909 (35 Stat., 773); 27 Op. Atty. Gen.. 259: Marine Corps. 84. 

4. Same — "A regulation which has been in force for many years will be sustained unless 

Congress has annulled it by positive enactment."' (16 Op. Attv. Gen., 621.) File 
26254-1451:11. J. A. G., Apr. 12, 1915, p. 8. See Regulations. Navy. 80, for annul- 
ment and revocation of regulations by the Secretary of the Navy. 

5. Approval of regulations by Congress— "It is well settled that Army Regulations 

when directly approved by Congress have the absolute force of law equally with other 
legislative acts. * * * "On the other hand, it is just as well settled that regulations 
not so approved have the force of law only when founded upon the Presidents con- 
stitutional powers as Commander in Chief of the Army, or are 'consistent with and 
supplementary to the statutes which have been enacted bv Congress in reference to 
the Army.' ' ' (Smith Case, 23 Ct. Cls., 452.) File 26254-1451:11, Apr. 12, 1915, p. 4. 

6. Same — Regulations which are specifically approved by Congress have the force and 

effect of law, as much so as though they formed a part of a statute covering the subject. 
File 3980-452:2, J. A. G., Dec. 8, 1909, p. 4. 

7. Same — Inaction by Congress is equivalent to legislative sanction of regulations and 

should be so regarded in testing the validitv of a regulation or construing a statute 
on the same subject. See File 5252-36, May 5, 1910, pp. 2, 9. 

8. Same-" Where a regulation has been in force and effect for manv years, the ratifi- 

cation of Congress will be implied.'-' File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 8. 

9. Same — "When Congress permits regulations to be formulated and published and car- 

ried intoeflect vear after Year, the legislative ratification must be implied ." (Maddux 
V. TJ. S., 20 Ct. Cls.. 198.) File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 5. 
10. Attorney General— Considered the question of the validity of a Navy regulation 
'''unusually important "to such an extent that he felt justified" in rendering an opinion, 
although the question pertained to matters under the jurisdiction of the Comptroller 
of the Treasury- (25 Op. Atty. Gen., 271.) File 26254-1451:11, J. A. G., Apr. 12, 1915, 
p. 21. See also Attorney General, 13. 

Jurisdiction of the Attorney General to interpret regulations and to consider 
legalitv of. See Attorney General. 15. 

II. Bulletin in court-martial orders — Digests in bulletin have not force of regulations. 

See Bulletin ln Court- Martlvl Orders, 3. 

12. "Catch-all" clause. See "Catch-all" Clause, 1. 

13. Classes of Army Regulations — 1. "Those which have received the sanction of Con- 

gress." With reference to such regulations the author says: "These can not be 
altered nor can exceptions to them be made by the Executive authority, unless the 
regulations themselves provide for it. In reality, the approval of Congress makes 
them legislative regulations, and they might therefore be more strictly classified with 
other statutory regulations with reference to subjects of military administration." 
2. "Those that are made pursuant to, or in execution of, a statute. * * * These, 
if it be not prohibited by the statute, may be modified by the Executive authority, 
but until this is done they are binding as well on the authority that made them as 
on others." 3. "Those emanating from, and depending on, the constitutional 
authority of the President as Commander in Chief of the Army and as Executive, 
and not made in supplement to particular statutes. These constitute the greater, 
part of the Army Regulations [and Navy Regulations]. They are not only modified 
at will by the President, but exceptions from particular regulations are given in 
exceptional cases, the exercise of this power with reference to them being necessary. 
'The authority which makes them [regulations] can modify or suspend them as to 
any case, or class of cases, or generally.'" (Lieber on Regulations, War Dept. Doc, 
1898, No. 63.) 



REGULATIONS, NAVY. 521 

14. Classes of regulations— There are two general classes of regulations issued by the 

Secretary of the Navy, namely: (1) Those which are expressly approved by the 
President in accordance with an order issued by Secretary Moody, June 22, 1904, 
known as Navy Regulations, and are specifically stated to be issued by authority 
of section 1547, R. S . ; and (2) those which are not expressly approved by the President, 
such as Naval Instructions, Forms of Procedure, Uniform Regulations, Signal Books 
and Drill Books, General Orders, Court-Martial Orders, Manual for Recruiting 
Officers, Manual Governing the Transportation of Enlisted Men, Manual for the 
Medical Department, Rules for Target Practice and Engineering Competitions. 
These publications have full force and effect as regulations for the guidance of all per- 
sons in the Naval Establishment (Navy Regulations, 1913, (R-901 (3),) and have been 
regarded as authorized by section 161, R. S. (File 3980-942), which has never been 
held to require the President's approval. C. M. O. 12, 1915, 11. 

15. Same— Regulations of the Navy consist of four classes: (1) General orders promulgated 

by the President under his constitutional prerogative as Commander in Chief; (2) 
departmental regulations prescribed by the Secretary of the Navy under section 
161, R. S.; regulations not approved by Congress but made by the President in the 
exercise of legislative authority conferred by Congress under R. S., 1547; and (4) regu- 
lations expressly approved by Congress. (In re Smith, 23 Ct. Cls., 452.) File 3980- 
1044, Mar. 19, 1915. 

16. Changes in— Necessity of approval of the President— An opinion rendered by Mr. 

* * * as Attorney General, November 8, 1904 (25 Op. Atty . Gen. 275, 276), has been 
regarded as requiring that all regulations and alterations therein issued under section 
1547, R. S., must be expressly approved by the President. This opinion was subse- 
quently disregarded by the Assistant Attorney General who represented the United 
States in the Court of Claims in the case of Adams v.V.S. (42 Ct. Cls. 191), and in the 
same case the court decided that "orders, regulations, and instructions issued by the 
Secretary of the Navy" under section 1547, R. S., "as well as alterations thereof," do 
not require personal approval of the President, but "are presumed to have been 
issued 'with the approval of the President,' though they do not bear his signature." 
In support of this decision the Court of Claims quoted previous decisions rendered 
by it and by the Supreme Court holding that the President acts through the heads of 
the executive departments and can not be required to perform ministerial acts in 
person. 

This decision of the Court of Claims, which is the latest authoritative expression on 
the subject, plainly modifies the opinion of Attorney General * * * (25 Op. Atty. 
Gen. 275, 276) with which it is in conflict, and which had already been practically 
repudiated by authorized representatives of the Department of Justice while acting 
as counsel for the United States in the Court of Claims. 

The department accordingly decides that Navy Regulations and alterations therein 
may be issued by the Secretary of the Navy by authority of section 1547, R. S., with- 
out express approval of the President being required, and such was the uniform 
practice prior to Secretary * * *'s order of 1904, above mentioned. Neverthe- 
less, the practice of submitting to the President for approval, regulations and changes 
therein issued pursuant to section 1547, R. S., will be continued as a general policy 
subject to modification in special cases if deemed advisable. File 39S0-1044:1, Sec 
Navy, Mar. 19, 1915. See also File 3980-1044, J. A. G., Jan. 11, 1915; 5599-04, J. A. G ., 
June 22, 1904; 3980-200, Sec. Navy, June 22, 1904; 5460-60, J. A. G., Jan. 22, 1913- 
CM. 0.12, 1915, 11-12. 

17. Same— "If the question were a new one my opinion would be that section 1547. R. S., 

contemplated and required express approval by the President of all regulations and 
alterations therein issued by the Secretary of the Navy under said section, and that 
decisions of the courts hold ing that the President is not required to perform minisl erial 
acts in person, do not apply to regulations issued under said section of the Revised 
Statutes which specifically makes the President's approval essential in order to give 
validity to the acts of the Secretary of the Navv performed thereunder, thus dis- 
tinguishing the case from section 161, R. S., and other laws in which heads of depart- 
ments are authorized to issue regulations without any mention being made oi the 
President's approval. However, in the face of the Court of Claim's decision above 
quoted [Adams v. U.S., 42Ct.Cls., 191] lam constrained to hold that express appro al 
of the President is not required by section 1547, R. S." File 39S0-1044, J. A. G ., Jan. 



522 REGULATIONS, NAVY. 

18. Same — It has been held that alterations made by authority of Congress in regulations 

which it had already approved "undoubtedly" likewise have "the sanction of Con- 
gress" so far at least as they are not "in conflict with the provisions of anv later 
statute." (14 Op. Atty. Gen. 172.) File 26254-1451:11, J. A. G., Apr. 12, 1915', p. 3. 

19. Same — "Alterations made pursuant to law in regulations which have been approved 

by Congress have the same force and effect as the original regulations if not in conflict 
with any later statute." File 26254-1451:11, Apr. 12, 1915, p. 8. 

20. Congress— Annulling. See Regulations, Navy, 3, 4. 

Approval of regulations by Congress. See Regulations, Navy, 5-9, 18, 19. 

21. Construction and interpretation of regulations. See Regulations, Navy, 87, 88. 

22. Contravene existing laws, must not— If the regulations are in conflict with the 

existing law, the law will govern, and the regulations will accordinglv be considered 
as inoperative. File 4579-8, Sec. Naw, June 19, 1906, quoted in File 26251-2993, 
J. A. G., Mar. 10, 1910, pp. 15, 16. See also Regulations, Navy, 42. 

23. Courts of inquiry— Construction and interpretation of Navy Regulations concerning. 

See Courts of Inquiry, 45. 

24. Courts-martial— Should uphold regulations. See Criticism of Courts-martial, 53. 

25. Court-martial orders— Have full force and effect as. See Court-martial Orders, 

33, 39. See aUo Bulletin ln Court-martial Orders, 3. 

26. Customs — There can be no such thing as a legal custom to disregard a valid regulation. 

C. M. O. 43, 1906, 3. See also Customs, 3, 9. 

27. Same— Merged in written regulations. See Customs of the Service, 6. 

28. Definition. See Regulations, Navy, 64. 94. 

29. Directory regulations. C. M. O. 18, 1897, 3; 27, 1898, 1; 50, 1900: 51. 1914, 2; 6, 1915, 6; 

41, 1915, 10: 49, 1915, 10, 12, 13-14. See also Convening Authority, 31; Mandatory 
Regulations and Laws. 

30. Doubt that regulation is authorized by law— "A regulation which has been in 

force for many years will be sustained by the courts even though 'it may well be 
doubted' that such regulation is authorized by law." File 26254-1451:11, J. A. G., 
Apr. 12, 1915, p. 8. 

31. Equitable— Regulations should be equitable. 

32. Force of law. See Regulations, Navy, 38-47. 

33. Implied approval of Congress. See Regulations, Navy, 7-9. 

34. Interpretation and construction of regulations. See Regulations, Navy, 87, 88. 

35. Same. See Regulations, Navy, 73, 87. 

36. Same — By Judge Advocate General. See Coast Guard, 1: Judge Advocate Gen- 

eral, 14. 17. 21. 33; Questions of Law, 2, 6, 8, 11; Records of Proceedings, 59. 

37. Judicial notice— Of regulations. See Judicial Notice, 7, 

38. Law— It is a well-recognized fact, supported by many authorities, that regulations 

have the force of law only when founded on the President's constitutional powers 
as Commander in Chief, or "are consistent with and supplementary to the statutes 
which have been enacted bv Congress." (Symond Case, 120 U. S. 46; Reed Case, 
100 U. S. 22; Smith v. Whithev, 116 U. S. ISO; Kurtz v. Moffitt, 115 U. S. 503; U. S. 
v. Eliason, 16 Pet. 291.) File 3980-452:2, J. A. G., Dec. 8, 1909, p. 4. 

39. Same — "The authority of the Secretary to issue orders, regulations, and instructions, 

with the approval of'the President, in reference to matters connected with the naval 
establishment, is subject to the condition, necessarily implied, that they must be 
consistent with the statutes which have been enacted by Congress in reference to 
the Navy. He may, with the approval of the President, establish regulations in 
execution of or supplementary to, but not in conflict with, the statutes defining his 
powers or conferring rights upon others." (Symond Case, 120 U. S. 46.) File 3980- 
452:2, J. A. G., Dec. 8, 1909, p. 4. 

40. Same; — Regulations made in conformity with laws are of binding force. File 3980- 

452:2, J. A. G., Dec. 8. 1909, p. 9. 

41. Same— Courts-martial are to be governed by the rules which Congress has prescribed, 

and also bv such regulations as may be made in pursuance thereof, such regulations 
having the force of law. File 26504-115, J. A. G., Jan. 24, 1911, p. 2. 

42. Same — It is well recognized that regulations are valid only when they do not conflict. 

with some provision of law: when they "are consistent with and supplementary to 
the statutes which have been enacted" bv Congress." (Symond Case, 120 U. S. 46; 
Reed Case, 100 U. S. 22; Smith v. Whitnev, 116 U. S. 180; Kurtz v. Moffitt, 115 U.S. 
503; U. S. v. Eliason, 16 Pet. 291.) File 5362-35, J. A. G., June 29, 1911, pp. 7-8. 



REGULATIONS, NAVY. 523 

43. Same — "Regulations expressly approved by Congress have the same force and effect 

as statute law." File 26254-1451:11, Apr. 12, 1915, p. 8. 

44. Same— "Regulations not approved by Congress have the force of law when not in 

conflict with any statute." File 26254-1451:11, Apr. 12, 1915, p. 8. 

45. Same— Regulations issued by the head of a department have the force and effect of 

law and are as binding as if incorporated in the statute law of the United States. 

46. Same— The Navy Regulations have the force and effect of positive law. (23 Op. 

Atty. Gen. 27.) 

47. Same— The opinion of the Attorney General, that when Congress expressly ratifies 

and adopts general orders issued by the Secretary of the Navy such orders were incor- 
porated into statute law, would apparently be applicable to any regulation or order 
which had been specifically adopted by Congress, either expressly or by necessary 
implication, as, for example, executive orders fixing the pay of enlisted men in the 
Navy, which were adopted by Congress in the act of May 13, 1908 (35 Stat. 128). 
See File 26509-106. 

48. Legality of— "The legality of a regulation must be presumed when * * * it has 

been in effect for nearly fifty years, and its validity was doubtless inquired into and 
determined prior to its adoption." File 7657-167, J. A. G., Jan. 17, 1913. 

49. Legislate— Regulations should not legislate. See File 28573-46:2-2. 

50. Long acquiescence — "Long acquiescence in an executive regulation is of itself evi- 

dence of its validity, the same as is long acquiescence in a statutory enactment, under 
the rule announced by the Supreme Court for determining the validity of executive 
regulations." File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 9. See also Regulations, 
Navy, 88. 

51. Same— The Court of Claims held that whether certain provisions of the Treasury 

Regulations were authorized by law "may well be doubted," but nevertheless "hav- 
ing been in force for a number of years, and in operation in every port of the United 
States except * * * , and having received the tacit, if not express, approval of 
Congress, this court does not feel at liberty to disregard them and hold that they are 
not authorized by law. * * * Whether the regulations have the force of "law, 
whether they make the law of the case and fix the claimant's legal right, as was before 
said, may well be questioned; but this court, for the reasons before given, does not 
feel at liberty to disregard them. (Carlinger v. U. S., 30 Ct. Cls. 477; seeaZso 22 Op. 
Atty. Gen. 183; U. S. v. Ala. R. R. Co., 142 U. S. 621.) " File 26254-1451:11, J. A. G., 
Apr. 12, 1915, p. 5. 

52. Loose leal— Criticism of. See File 3980-1228, J. A. G., Apr. 26, 1916. 

53. Mandatory— C. M. 0. 6, 1915, 6; 41, 1915, 10; 49, 1915, 10, 12, 13-14. Seealso Mandatory 

Regulations and Laws. 

54. Navy Regulations, 1841— Article 580 quoted. See File 26254-1451:11, J. A. G., Apr. 

12, 1915, p. 1. See also File 26510-225:1, J. A. G., June 10, 1911 . 

55. Same— Approved by act of Congress July 14, 1862 (12 Stat., 565). File 26254-1451:11, 

J. A. G., Apr. 12, 1915, p. 1. 

56. Navy Regulations, 1865— Article 894 quoted. File 26254-1451:11, Apr. 12, 1915, p. 2. 

57. Navy Regulations, 1869— Article 1343 cited. File 26254-1451:11, J. A. G., Apr. 12, 

1915, p. 2. 

58. Navy Regulations, 1870— Article 1218 quoted. File 26254-1451:11, J. A. G., Apr. 12, 

1915, p. 2. 

59. Same — Was expressly approved by Coneress in the Revised Statutes approved June 

30, 1874, section 1547. File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 2. 

60. Navy Regulations of 1876— "As stated in the Attorney General's opinion of October 

27, 1909 (3980-530). the, Navy Regulations of 1876 received the express sane: ion of 
Congress in the enactment of sect ion 1547, R. S." File 7657-167, J. A. G., Jan. 17, L913. 

61. Navy Regulations issued since Revised Statutes— Seven editions of theNavy 

Regulations have been issued since the approval of the Revised Statutes, 1876, 1893. 
1896, 1900, 1905, 1909, 1913. File 26254-1451:11, J. A. G., Apr. 12. 1915, p. 3. 

62. Offenses— In violation of a regulation. See Charges and Specifications, is. 50,94. 

63. Officers— Are presumed to know the Navy Regulations. See OFFICERS, 79, SO. 

" All officers of the Navy are bound by the regulat ions prescribed for i heir guidance 
by the Secretary of the Navy with the express approval of the President." File 
26254-1451:1, Sec. Navy, Jan. S. 1915, p. 5. 

An officer's repeated violations of the Navy Regulations stamps him as untrust- 
worthy and not a proper person to maintain discipline and exercise command over 
others. See Officers, 81. 



524 EEGULATIONS, NAVY. 

64. Order— A regulation is an order in cases in which it applies, as much so as a special 

command reiterated on each particular occasion. See File 26254-1451:11, J. A. G., 
Apr. 12, 1915. 

65. Pay — Pay can not lawfully be taken away by executive officers, but requires the clearest 

indication of the legislative intent, and should not be done for administrative reasons 
merely through the medium of questionable implications in order to adopt a policy 
which may appear to be desirable but which is not provided for by law. File 5362-35, 
J. A. G., June 29, 1911, p. 9. 

66. Same — The reduction in or deprivation of the pay of an officer is beyond the scope of a 

regulation, unless there is some plain statutory authority therefor. File 5362-35, 
J. A. G., June 29, 1911, p. 8. 

67. Pay officers— A Navy regulation (Navy Regulations, 1913, R-3991), requiring pay 

officers to disburse money under certain contingencies, is an order of the Secretary of 
the Navy, and as such protects the pay officer from responsibility and is conclusive 
upon the accounting officers. (30 Op. Atty. Gen. — , reversing 21 Comp. Dec. 554, 
357, 245.) See File 26254-1451:11, J. A. G., Apr. 12, 1915. 

68. Personal approval by President — Of changes in Navy Regulations not required, but 

nevertheless the practice of submitting to the President for approval, regulations and 
changes therein issued pursuant to section 1547, R. S., will be continued as a general 
policy subject to modification in special cases if deemed advisable. See Regula- 
tions, Navy, 16-19. 

69. President— As Commander in Chief may issue regulations. See Regulations, Navt, 

13, 15. 

70. Pursuant to or in execution of a statute. See Regulations, Navy, 13, 15. 

71. Regulations issued by head of a department and not expressly approved by 

Congress— It is established by the authorities that a regulation not expressly 
approved by Congress may nevertheless have the force and effect of statute law where 
the approval of Congress may be implied . Thus, it has been held that it " can not for 
a moment be doubted that Congress in legislating with reference to the Naval 
Academy knows of the existence of regulations issued by the Secretary of the Navy 
relating to the same subject." (Benjamin v. U. S., 16 Ct. Cls. 484; See also 19 Op. 
Atty. Gen. 591.) File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 5. 

72. R. S. 161— " The head of each department is authorized to prescribe regulations, not 

inconsistent with law, for the government of his department, the conduct of its 
officers and clerks, the distribution and performance of its business, and the custody, 
use, and preservation of the records, papers, and property appertaining to it." (R. 
S. 161). 

73. Same — "In determining whether the regulations promulgated by him are consistent 

with law, we must apply the rule of decision which controls when an act of Congress 
is assailed as not being within the powers conferred upon it by the Constitution; 
that is to say, a regulation adopted under section 161, R. S., shotild not be disregarded 
or annulled unless, in the judgment of the court, it is plainly and palpably incon- 
sistent with the law. Those who insist that such a regulation is invalid must make its 
invalidity so manifest that the court has no choice except to hold that the Secretary 
has exceeded his authority and emploved means that are not at all appropriate to 
the end specified in the act of Congress." File 26254-1451:11, J. A. G., Apr. 12, 1915, 
p. 4. See also 29 Op. Atty. Gen. 478. 

74. Same— Regulations promulgated under section 161, R. S., have the force of law. 

( Gratiot v. U. S., 4 How. 80; Ex parte Reed, 100 U. S. 18) but they are not the law itself. 
Hence where rights, duties, and obligations are defined by statute they can not be 
taken awav or abridged by the regulations of an executive department. (Campbell 
V. U. S., 107 U. S. 407, 410.) 

The purpose of a regulation of an executive department is to carry into effect the 
law in respect to which it may be promulgated. (Laurey etal v. U.S., 32 Ct. Cls. 
265, 266.) File 5362-25, J. A. G., June 29, 1911, pp. 5-6; 3980-452:2, J. A. G., Dec. 8, 
1909, p. 6. 

75. R. S. 285— "That the Secretary of the Navy is authorized with the approval of the 

President to make administrative regulations under the provisions of section 285, 
R. S., has never been questioned by the accounting officers. On the contrary, general 
regulations issued under that section have been repeatedly sustained and enforced 
by the Comptroller of the Treasury. (See for example 8 Comp. Dec. 756; 9 Comp. 
Dec. 545)." File 20254-1451:11, J. A. G., Apr. 12, 1915, p. 7. 






REGULATIONS, NAVY. 525 

76. R. S. 1547— "The orders, regulations, and instructions issued by the Secretary of the 

Navy prior to July 14, 1862, with such alterations as he may since have adopted, 
with the approval of the President, shall be recognized as the regulations of the Navy, 
subject to alterations adopted in the same manner." (R. S. 1547.) File 5460-60, 
J. A. G., Jan. 22, 1913, p. 3; 26254-1451:11, J. A. G., Apr. 12, 1915, p. 2. 

77. Same — "The Secretary of the Navy is authorized to establish 'Regulations of the 

Navy/ with the approval of the President. (12 Stat. 565; Rev. Stat. sec. 1547.) Such 
'regulations for the administratioa of law and justice' were issued on the 15th of April. 
1870 * * * Such regulations hive the force of law." (Gratiot v. U. S., 4 How. 80.) 
File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 2. 

78. Same — " With reference to Navy Regulations, issued under section 1547, R. S., Attorney 

General Devens said that what Congress had conferred on the Secretary of the Navy 
was not any portion of its general power of legislation, but only the right to make 
appropriate regulations for the performance of their duties by those whom Congress 
had placed under his official control. But if it is true that the source from which 
the President derives his authority to make regulations is statutory, in the absence 
of statute he would have no authority, and this we know not to be so. There is no 
similar existing provision of law relating to the Army, but the power of the President 
to make regulations for the Army is unquestioned." (Lieber on Regulations, 49.) 

79. Same — "By section 1547, R. S., passed since the adootion of the Navy Regulations 

1870, 'the orders, regulations, and instructions issued by the Secretary of the Navy 
prior to July 14, 1862, with such alterations as he may sinfe have adopted, with the 
approval of the President, shall be recognized as the regulations of the Navy, subject 
to alterations adopted in same manner.' This legislative recognition of the Navy 
Regulations of 1870 ' must,' as was said by Chief Justice Marshall of a similar recogni- 
tion of the Army Regulations in the act of April 24, 1816, ch. 69, sec. 9 (3 Stat. 298), 
*&eMW(Zerstoo(?asgivingtothoseregulation3thesanction of thelaw.' (U. S. v. Maurice, 
2 Brock. 96, 105; Ex parte Reed, 100 U. S. 13.)" (Smith v. Whitney, 116 U. S. ISO, 
181.) File 26254-1451:11, J. A. G., Apr. 12, 1915, p. 2. 

80. Revocation and annulment— Of Navy regulation by the Secretary of the Navy. 

G.0. 120, April 1,1869. 

81. Source and authority for Navy Regulations. See Regulations, Navy, 76-79. 

82. Subject — Regulations must confine themselves to their subject. See File 26254-1451: 

11, Apr. 12, 1915. 

83. Suspension of regulations. See Regulations, Navy, 13, 91. 

84. Uniform — Regulations must be uniform. 

85. Usages of the service— Merged in written regulations. See Customs of the Service, 6. 

86. Validity of— Whether a Navy regulation has binding force as law on the accounting 

officers of the Government is a question of law and not one of accounting and the 
Attorney General will render an opinion thereon upon request of the Secretary of 
the Navy. See Attorney General, 13. 

87. Same — The same rule of decision should be applied in determining whether an execu- 

tive regulation is consistent with law as controls when the constitutionality of an act 
of Congress is brought into question. (Boske v. Comingore, 177 U. S. 459, 470.) 
File 26254-1451: 11, J. A. G., Apr. 12, 1915, p. 7. 

88. Same— In referring to a regulation which had been in force for three-quarters of a 

century without its validity ever having been questioned it was held: "Such long 
acquiescence is of itself sufficient to establish the regulation as a valid one, if the rule 
laid down by the Supreme Court is to be followed." File 26254-1451: 11, J. A. G., 
Apr. 12, 1915, p. 8. See also Regulations, Navy, 50. 

89. Same— "The validity of a regulation not expressly approved either by Congress or 

the President will be sustained by the Supreme Court unless "it is plainly and pal- 
pably inconsistent with law," and those who insist upon its invalidity succeed in 
making its invalidity ' ' so manifest that the court has no choice ' ' except to sustain t heir 
contention. File 26254-1451:11, Apr. 12, 1915, p. 8. 

90. Waiving regulations— If the Navy Regulations, issued under section 1547, R. S.. be 

waived in any case, express personal authority of the President for such waiver is 
necessary, for the principle is recognized in the decisions that regulations can bo 
waived only by the authority which made them, and t lie President and the Secretary 
of the Navy both act in issuing regulations under section 15(7, R. S. File 5460-60, 
J. A. G., Jan. 22, 1913, p. 3. See in this connection, 6 Comp. Dec. 589. But s<\ 
Regulations Navy, 16, which holds that the Secretary of the Navy may change 
Navy Regulations. 



526 REGULATIONS, NAVY. 

91. Same — The records of the department show that for a great many years precedents 

have existed and been followed, amounting practically to a custom on the part of the 
Secretary of the Navy to waive provisions of the Navy Regulations in individual 
cases, where such action for any reason seemed advisable. The exercise of such power 
by the Secretary of the Navy was sustained by the Comptroller of the Treasury in a 
decision rendered January 8, 1900, in which it was said: " I know of no law or rule 
which forbids the head of a department from suspending the operation of any regu- 
lation similar to this in individual instances. The effect of such suspension is to 
cause a want of uniformity in the operation of these regulations, but if this be a fault 
it is chargeable to the administration of the regulations, and does not imply the want 
of power to so suspend the operation of a regulation in individual cases." In the 
case considered by the Comptroller it appears from his decision that the Secretary of 
the Navy directed that the operation of the regulation in question be suspended; and 
the comptroller stated that such regulation "was waived by the power which made 
these regulations." This last statement was literally true, as at that time Navy 
Regulations and changes therein were not expressly approved by the President, but 
the entire matter of making, modifying, repealing, and suspending or waiving Navy 
Regulations was handled entirely by the Secretary of the Navy. Inasmuch as the 
Navy Regulations and changes therein are now personally approved by the Presi- 
dent, it follows that a provision of such regulations in individual cases can be sus- 
? ended, if at all, only by the personal action of the President. File 5460-60, J. A. G., 
an. 22, 1913, pp. 2-3. 

Regulations, Navy, 16, holds that the Secretary of the Navy may create and 
amend regulations under R. S. 1547, and it follows that he may therefore waive 
such regulations. 

92. Same — A Navy regulation issued under section 1547, R. S., may be waived by the 

Secretary of the Navy. Tile 3980-1044, Mar. 19, 1915. See also Acting Assistant 
Surgeons, 2, holding that departmental circulars may be waived. 

93. Same — Policy of the department—" The department is averse to waiving the provisions 

of the Regulations except in cases of great necessitv." File 17789-10, Sec. Navy, May 
5, 1909, with reference to waiving age requirements for appointment of warrant officers. 

94. Same— "A regulation is usually simply a method of administering a law. Such is the 

regulation in question. It was made to aid you in the administration of this appro- 
priation and is binding upon your subordinates so long as you do not abrogate or 
waive it. You are at liberty, in my judgment, to change, modify, or waive it at your 
pleasure, always provided that you do not violate some law in your changed or modi- 
fied regulation, or by making such change, modification, or waiver, you do not en- 
croach upon or abrogate some contractual right fully vested before notice of such 
change, modification, or waiver." (9 Comp. Dec. 2S0). File 5460-60, J. A. G., Jan. 
22, 1913. 

95. Same — "The provisions of 1-4721 may be waived within the discretion of the depart- 

ment." File 26516-162, J. A. G., Dec. 8, 1914; C. M. O. 6, 1915, 9. 

96. Weight of regulations. See Regulations, Navy, 38-47. 

REGULATIONS FOR THE GOVERNMENT OF THE NAVAL DISTRICTS OF 
THE UNITED STATES. File 24514-39: 10, J. A. G., Nov. 6, 1916. 

REGULATIONS OF THE UNITED STATES NAVAL ACADEMY, 1911. 

1. R. S., 161. See Midshipmen, 74; Naval Academy, 21. 

2. R. S., 1547— The Court of Claims in Weller v. U. S. (41 Ct. Cls., 324, 343) stated that these 

regulations are presumably issued by the Secretary of the Navy pursuant to section 
1547, R. S. 

These regulations, however, are not issued with the express approval of the Presi- 
dent as is the practice under section 1547, R. S. 

REINSTATEMENT OF FORMER MARINE OFFICERS BY ACT OF AUG. 29, 

1916. See Marine Corps, 4 . 

REINSTATEMENT OF MIDSHIPMEN. See Midshipmen, 75, 76. 

REINSTATEMENT OF RESIGNED OFFICERS. See Midshlpmen, 72; Resig- 
nations, 6, 21, 22. 

REJECTION OF ACCUSED'S PLEA OF GUDLTY IN A LESS DEGREE THAN 
CHARGED. See Court, 93; Guilty in a L ess Degree Than Charged, 9-11; Try- 
ing Case Out of Court. 



REPORTS OF DESERTERS RECEIVED ON BOARD. 527 

"RELATIVE." 

1. Definition— Within meaning of act of June 30, 1914 (38 Stat. 406). See Flags, 2. 

2. Same— Within meaning of act of August 22, 1912 (37 Stat. 329), regarding death gratuities. 

See Death Gratuity, 26. 

RELEASES, DESERTERS'. See Deserters, 21, 23. 
RELEVANCY OF EVIDENCE. See Evidence, 102 103. 

RELIGION. 

1. Freedom of opinion — In religion. 

2. Religious beliefs. C. M. 0. 16, 1916, 9. See also Typhoid Prophylactic. 

REMARKS BY JUDGE ADVOCATE AND COUNSEL. See Arguments. 

REMEDIAL LAWS. 

1. Removal of charge of "Desertion"— Laws providing for the removal of the charge 
of "Desertion" standing on the records of the Army or Navy against certain classes 
of persons who served in the Civil War are remedial statutes. File 26539-551, Mar. 
17, 1913. 

REMISSION. 

1. Pay— Remission of unexecuted loss of pay hy discharge. See Bad-Conduct Dis- 

charge, 3. 

2. Pay adjudged forfeited by courts-martial— Should in general be remitted only as 

an act of clemency toward accused. See Allotments, 6, 7; Clemency, 53. 

3. President— Remitted sentence of an officer and directed that he he reprimanded. C. 

M. O. 48, 1904. 

4. Sentence — Mitigation or remission by convening authority after final action is unau- 

thorized. See Convening Authority, 62. See also Setting Aside. 

5. Same — Remitted to permit subsequent sentence to take effect— The accused was tried 

by court-martial and sentenced to be restricted to the limits of his ship for six months 
and to be publicly reprimanded. He was subsequently tried by general court-mar- 
tial and sentenced to dismissal. The convening authority in his action on the first 
case approved the proceedings, findings, and sentence, but remitted the sentence 
in view of the fact that the sentence of dismissal adjudged by the general court- 
martial before which he was subsequently tried, was approved, confirmed, and exe- 
cuted. C. M. O. 17, 1912. 

6. Unexecuted part of sentence— Remitted by discharge. C. M. O. 22, 1915, 5. 

REMISSION BY CONVENING AUTHORITY AFTER FINAL ACTION. See 

Convening Authority, 62. 

REMOVAL OF MARK OF DESERTION. See Mark of Desertion. 

REMOVAL OF PAPERS FROM OFFICERS' RECORDS. See Records of Officers, 

10, 11. 

RENDERING A FALSE AND FRAUDULENT RETURN, IN VIOLATION OF 
ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE 

NAVY. 
1. Officer— Charged with. C. M. O. 4, 1915; 7, 1913; 39, 1913. See also C. M. O. 7, 1894; 92. 
1903; 18, 1907; 38, 1907; 7, 1894; 203, 1902; G. C. M. Rec. 16956. 

RENOUNCING CITIZENSHD?. See Citizenship, 17, IS. 

REPEAL OF STATUTES. See Statutory Construction and Interpretation, 108 . 109. 

REPORTS OF DESERTERS RECEIVED ON BOARD. 

1. Collateral facts. See Reports of Desertkks Received on Board, 4. 

2. Definition— The "Report of deserter received on board - ' is an official paper which is 

required to be made in the course of oflicial duty and as the result of personal knowl- 
edge, and it would appear that the above-mentioned reporl should property be admis- 
sible to prove the date and place of return from unauthorized absence. File 26504-142. 
J. A. G., May 18, 1912. See also G. C M. Rec. 21180; 21198. 

50756°— 17 34 



528 REPORTS OF DESERTERS RECEIVED ON BOARD. 

3. Evidence to prove "Desertion" — "The judge advocate introduced against objection 

by the accused the 'Report of deserter received,' although there was better evidence 
at hand, and the court overruled the objection. This was an error on the part of 
the court, as witnesses to prove all the facts that it was attempted to prove by the 
introduction of the above-mentioned report could have been and should have been 
summoned to testify as to those facts. (Par. XII of the department's instructions 
of May 14, 1908.) In permitting the judge advocate to decide for it that the witnesses 
in question could not be summoned without injury to the service the court permitted 
a usurpation of its own power by one who was not a member. It also appeared that 
the court, after due consideration, decided that its former ruling on the report was in 
error and that as evidence the contents of that report should be stricken from the 
record." 

" It also appeared from the testimony of a chief yeoman of the receiving ship on which 
* * * was delivered, who was finally called as a witness, that the manner in which 
reports are made of deserters received on board that vessel is not such as to warrant 
their being received in evidence, even as to the return of a man to the service." 

These irregularities, and the "vacillation of the court in its rulings as to the admis- 
sion of the 'Report of deserters received ' rendered the proceedings of such a character 
that it was considered to the best interests of the administration of justice that they 
be disapproved," and the accused discharged as "undesirable for the service" as an 
independent proceeding. C. M. O. 28, 1909, 3. Parts of above inconsistent with 
C. M. O. 31, 1915, 14-16, are overruled. See Seevice Records, 16. 

The accused was tried for " Desertion." The judge advocate introduced in evidence 
the enlistment record of the accused and the "Report of deserter received on board." 
The department held that as the accused "had absented himself but a short time 
previously from and was delivered at the station where he was tried, it would appear 
that neither of these documents was the best evidence of the facts recorded therein, 
and being but secondary evidence, are not admissible." C. M. O. 47, 1910, 6. 
Overruled by C. M. 0. 31, 1915, 14-16, contained in Service Records. 16. 

4. Same — Accused was charged with " Desertion, " and upon arraignment pleaded "Not 

guilty." "The only witness for the prosecution was the judge advocate, who read 
from two documents the ' Enlistment record of the accused ' and a ' Report of deserter 
received ,' neither of which had been offered in evidence. These documents, if unob- 
jected to, * * * may be admitted as evidence, but only when better evidence is 
not obtainable . In any case, however, the most that can be shown by them is the date 
when and place from which the original absence began, and similarly as to its termi- 
nation. Any other collateral facts contained therein, such as a statement made by 
the accused, clothing worn, etc., are inadmissible." In view of the foregoing and to 
the fact that the accused was not "accorded his constitutional right to cross-examine 
the only witness produced for the prosecution," the proceedings, findings, and sen- 
tence were disapproved. C. M. O. 37, 1909, 9. C. M. O. 31, 1915, 14-16 (Service 
Records, 16), overrules everything in above inconsistent with it. 

5. Same— The judge advocate, while on the witness stand, introduced as evidence the 

"Reportof a deserter received on board," signed by the command ing officer of the vessel 
on which the accused was received from desertion. The officer who signed the report 
was also a member of the court before which the accused was being tried. Therefore 
the report itself indicated the existence of higher evidence for which it was only a sub- 
stitute, and the higher evidence being obtainable, the substitute was incompetent. 
The accused having been brought to trial at the navy yard where he was received from 
desertion, the best evidence of his delivery to the naval authorities would have been 
the oral testimony of those who witnessed such delivery ; and since better evidence was 
obtainable there was no ground for the admission in evidence of this written report. 
C. M. O. 49, 1910, 10. C. M. O. 31, 1915, 14-16 (Service Records, 16), overrules 
everything in above inconsistent with it. 

6. Same — Accused was charged with "Desertion" and the court accepted the plea of 

"Guilty in a less degree than charged," on the advice of the judge advocate, who 
stated that it was "impossible to summon witnesses for the prosecution." 

The judge advocate was furnished with the "Service record" and "Report of 
deserter received on board." The latter paper showed that two officers, one who 
reported and another who witnessed the return of the accused, were available as 
witnesses. 



REPORTS OF DESERTERS RECEIVED ON BOARD. 529 

The " Service record" could have been introduced by the judge advocate in his 
capacitv of legal custodian of that document to prove that that accused was charged 
with "Desertion" from the place and date alleged in the specification, and the two 
witnesses above referred to could have testified as to the facts surrounding the return 
of the accused to the service. (Or according to the department's rulings if these 
witnesses were not available the "Report of deserter received on board " could have 
been introduced to prove the date of return of the accused.) Such having been 
accomplished, the burden would then have been shifted upon the accused to explain 
the lengthy unauthorized absence; otherwise the court would have been justified in 
reaching a finding of guilty of the charge of "Desertion." 

However, the fact that the court accepted the plea of the accused can not be con- 
sidered as having adversely affected his interests, but such improper procedure on 
the part of the court and the judge advocate thereof indicates a dereliction in the 
performance of their duties as such. C. M. O. 10, 1912, 7-8. C. M. O. 31, 1915, 14-16 
(Service Records, 16), overrules everything in above inconsistent with it. 
7. Same — For department's policy at the present date, see Service Records, 16. 

REPORTS ON FITNESS. See also Records of Officers. 

1. Admissions by judge advocates— Of contents of reports on fitness. See Reports on 

Fitness, 5. 

2. Appeals by officers to Secretary of Navy to have record of punishment re- 

moved—An officer appealed to the Secretary of the Navy to have a "report of a 
punishment" suspension for 10 days imposed on him by the commanding officer of 
a naval station removed from his record. This officer was the convening authority 
of a summary court-martial and refused to obey the order of the commanding officer 
of the naval station (who was the senior officer present) to modify his action on a 
record. The department declined to sustain the appeal for two reasons: (1) The 
officer's deductions respecting the requirements of the Navy Regulations in the 
matter were erroneous; and (2) if they had been correct it would have been his duty 
in a matter of this character promptly to have obeyed the order of his superior officer, 
presenting to him afterwards his appeal. While the department could not under 
the circumstances intervene with respect to the punishment imposed, a copy of the 
department's letter was filed with the officer's record in order that the action taken 
upon review of the matter might fully appear. File 1192-1, Sec. Navy, Mar. 21, 1905. 
See also File 14818-3, Sec. Navy, Oct. 26, 1908; Orders, 67. 

3. Same — An enlisted man being tried by summary court-martial pleaded guilty and was 

sentenced to the loss of one month's pay. The commanding officer, who was the con- 
vening authority, deeming the sentence inadequate, returned the record for revision, 
thus affording the court full opportunity to reconsider its action. The court adhered 
to its former sentence. After this, the commandant, as senior officer present in 
reviewing the case expressed his concurrence in the opinion of the convening authority, 
that the sentenced adjudged was entirely inadequate to the seriousness of the offense 
to which the accused pleaded guilty; and made certain remarks which he intended 
to reflect on the individual professional character of the memliers of the court who had 
voted for the inadequate sentence. The senior officer present further directed that 
his remarks be brought to the attention of the members of the court, and that each 
member be given an opportunity to make such statement as he desired in reply 
thereto. All three members of the court in their reply indicated that they did not 
desire to make any statement at that time. The commanding officer subsequently 
entered a brief notation of the facts on the individual reports on fitness of the officers 
concerned, as it was his duty to do in any case where the professional fitness of the 
officer reported uponhad been brought in question. Each of these officers individu- 
ally requested of the Secretary of the Navy that this entry be removed from his report 
onfitness. Held, The Secretary of the Navy fully concurs in the action of the com- 
mandant, as senior officer present, on the summary court-martial case in question, 
and denies the requests of the three officers concerned to have the record thereof 
removed from their reports on fitness. Had any member voted for an adequate 
sentence he could have so stated. (See C. M. O. 42, 1915, p. 8.) (.See File 7719-03, 
Sec. Navv, Nov. 18, 1903, 155-04, G. C. M. Rec. No. 12010.) File 25675-9-10-11. Sec. 
Navy, Oct. 28, 1915; C. M. O. 49, 1915, 20-21. See also Criticism of Courts-martial, 
36. 



530 REPORTS ON FITNESS. 

4. Same— An officer requested that the offense of neglect of duty be not entered on his 

record. C. M. O. 4, 1911, 1. 

5. Evidence, as— A question was presented to the court in connection with a request made 

upon the judge advocate, out of court, by counsel for the accused that the judge advo- 
cate admit that the efficiency reports of the accused contained no entry with reference 
to intoxication; this in order to save the time of the court and the expense of making 
copies of the efficiency reports to be introduced in evidence . This request, however, 
was later withdrawn by counsel. 

It has been held by the department that it is not necessary for the court to append 
either the originals or certified copies of efficiency reports to the record of proceedings 
when introduced in evidence before a general court-martial , but that a simple notation 
m the record that they were admitted in evidence is sufficient, as the originals form 
a part of the officer's official record on file in the department, where they may readily 
be examined at any time in connection with the court-martial proceedings. (File 
26251-7777, Sec. Navy, July 2, 1913.) 

The complete record of an officer, including his efficiency reports, is customarily 
furnished the judge advocate in the case of an officer to be tried by general court- 
martial. (C. M. O. 1, 1914, p. 7.) Where it is desired to put this record or any part 
thereof in evidence the original, where available, should be offered, and the action 
of a judge advocate in making admissions as to its contents would not in general 
meet with the approval of the department. C. M. O. 19, 1915, 9. See also C. M. O. 
14, 1916, 2. 

6. Same — Officers' service records are kept in the department's files, where they may be 

consulted in connection with the review of any court-martial case in which the same 
might have been received in evidence. It would be improper to attach an officer's 
service record to the record of proceedings of a court-martial as a permanent exhibit 
therewith. (In this connection see C. M. O. 1, 1914, p. 7; 19, 1915, p. 9.) C. M. O. 29, 
1915, 8. 

7. Same— A witness on the part of the defense was shown various reports on fitness and 

answers to interrogatories respecting the accused, "and was asked by counsel for 
the accused and permitted by the court to read in evidence extracts from such reports. 
Answers to interrogatories are made on oath; reports on fitness on honor; but they 
are not admissible as evidence in a case of this character." C. M. O. 104, 1896, 6. 
But see Reports on Fitness, 5. 

8. Same— The record of an officer was introduced in evidence and then questions asked 

the witness concerning parts of it. G. C. M. Rec. 30562, pp. 61-64. 
Competency of reports on fitness as evidence to show general reputation, and char- 
acter. File 3009-02, J. A. G., April 10, 1902; 20 J. A. G. 10. 

9. General court-martial member— Appealed against criticism by convening authority. 

See Criticism of Courts-Martial, 35. 
10. Summary court-martial members — Protested against entry as to manner of per- 
forming duty. See Reports on Fitness, 3. 

REPRESENTATIVE. (Member of Congress. ) 
1. Witness— Before a court of inquiry. See Congress, 12. 

REPRIMAND. See also Public Reprimand. 

1. Courts-martial— May be reprimanded for leniency. See Criticism of Courts-Mar- 

tial, 55. 

2. Definition — "The definition of the word 'reprimand,' as given in Webster's dictionary 

is 'severe or formal reproof; reprehension, public or private.'" '"The terms of a 
reprimand are not prescribed * * * but are left to the discretion of the officer' 
administering the reprimand. (Harwood, p. 136)." C. M. O. 9, 1893, 9. See also 
Public Reprimand, 4. 

3. Jeopardy, former. See Jeopardy, Former. 

4. Letters of— Jurisdiction of office of Judge Advocate General and Bureau of Navigation. 

J. A. G., Feb. 2, 1916. 

5. Officers. See Officers, 101. 

6. President directed— Accused who was sentenced to lose numbers by sentence of general 

court-martial appealed from such sentence— Case was carefully reviewed by Judge 
Advocate General and submitted to President, who directed that the sentence be 
mitigated and the accused "be reprimanded for neglect of duty." C. M. O. 48, 1904. 



REPRIMAND. 531 

7. Private reprimand. See Private Reprimand. 

8. Public reprimand. See Public Reprimand. 

9. Right of senior officers to reprimand subordinates. See Public Reprimand, 17. 

10. Secretary of the Navy— It is within the discretion of the Secretary of the Navy to express 

his approval or disapproval of the acts or omissions of any officer, enlisted man, or 
civil employee under the Navy Department. This action may be in accordance 
with, oreven contrary to, the findings of a board of investigation or any other source 
of information, or recommendation. File 26283, J. A. G., Feb. 12, 1913. See also 
Commendatory Letters, 2; Public Reprimand, 17; Secretary of the Navy, 63. 

11. Sentence of general court-martial— Officer was sentenced "To be reprimanded bv 

the Secretary of the Navy." C. M. O. 36, 1908, 2; 5, 1904. But see Public Repri- 
mand, 19. 

12. Same — "To be reprimanded in general orders by the honorable Secretary of the Navy." 

C. M. O. 7, 1879; 20, 1881; 16, 1882, 2; 41, 1883, 2; 43, 1884. 

REPUTATION. 

1. Witnesses— Reputation of witness. C. M. 0. 16, 1916, 7. See also 16 Cyc. 1278; Spurr v. 
U. S. (87 Fed. Rep. 701); 1 Greene (16 ed.), 585; Reports on Fitness, 8. 

REQUISITIONS. 

1. State civil authorities— Requisitions of governors of States necessary in certain cases. 
See General Order No. 121, Sept. 17, 1914, 10. 

REREVISION. See Previous Connections, 23. 

RES GESTAE. 

1. Definition— " Things done, or, literally speaking, the facts of the transaction; the things 

done, the facts of a transaction; circumstances evidentiary of a litigated fact; the sub- 
ject matter, or thing done; the transaction, thing done, the subject matter; the sur- 
rounding facts of a transaction, explanatory of an act or showing a motive for acting; 
matters incidental to a main fact and explanatory of it, including acts and words 
which are so closely connected with a main fact as will constitute a part of it, without 
a knowledge of which the main fact might not be properly understood ; events speaking 
for themselves through the instinctive words and acts of participants, not the words 
and acts of participants when narrating theevents; the circumstances, facts, and decla- 
rations which grow out of the main fact, are contemporaneous with it, and serve to 
illustrate its character; including everything which may fairly be construed an inci- 
dent of the event under consideration; those circumstances which are the automatic 
and undesigned incidents of a particular litigated act, and are admissible when illus- 
trative of such act." (34 Cyc. 1633-1644). SeeC. M. O. 7, 1911, 8. 

2. Same— Another form of declaration of a third person which is admissible is that which 

forms a part of w 7 hat is legally known as the " res gestae." By the term u rcs gestae "is 
meant "the circumstances and occurrences attending and contemporaneous with 
the principal fact at issue, or so nearly contemporaneous with it as to constitute a 
part of the same general transaction, which explain and elucidate such fact by indi- 
cating its nature, motive, etc." No rule can be laid down which will be a guide as 
to what is and what is not a part of the res gestae. It is a matter which must be 
left to the wise discretion of the court. A declaration made even a few seconds after 
the occurrence of a fact has been held not to be a part of the res gestae, while under 
other circumstances a declaration made a week or months after the fact has been 
held as part of the res gestae. Each and every case must stand on its own merits. 
and, as before stated, must be left to the sound discretion of the court, whichof course 
is guided by the circumstances attending the case. (Forms of Procedure, 1910. pp. 
140-141). See C. M. O. 76, 189o, 8-9. 

3. Same— "It may be added that the testimony of the master-at-arms in support of this 

charge concerning the accusations made by the crowd was not admissible as a part of 
the res gestae, asit does not appear that the statements that the accused had insulted 
a person unknown were in the nature of spontaneous out cries on the part ol the crowd 
which were overheard by the master-at-arms." C. M. O. 7. 1911. S. 

RES JUDICATA. 

1. Advancement of officers— Question of advancement of certain officers retired under 
act June 29, 1906 (31 Stat. 554)— The act. in providing that officers of the Navv under 
certain conditions might be retired with the rank and retired pay of the next higher 
grade, expressly stipulated that those benefits should be granted "in the discretion 



532 RES JUDICATA. 

of the President." The claims of the officers in question were settled by the decisions 
of the previous administration and must now he considered closed. File 27231-42:2, 3, 
Sec. Navy, Mar. 1, 1913. 

2. Civil War service of officers. File 27231-42. See also File 27231-42:2, 3; 20971-19:1, 

Apr. 14, 1913; 26252-71:2, Aug. 29, 1913; 26836-15, Nov. 17, 1913. 

3. Commissions. See Commissions, 14-16. 

4. Definition— " It appears from the above that the question which you now present in 

your request of July 28. 1916, was settled and decided by the decision of a previous 
administration, and this more than thirteen years ago. Accordingly, it must now be 
considered as closed under the settled legal doctrine of res judicata; that is, that decided 
cases should not be disturbed. This doctrine, as applied to the decisions of executive 
departments, is well established by a long line of opinions rendered by eminent 
Attorneys General, as well as by many judicial decisions, and has been sustained and 
followed by the department in the past with reference to decisions of previous ad- 
ministrations. (File 20971-19:1, and authorities and cases therein cited; see also File 
26283-327:24 and 25, Sept. 19, 1916)." File 11130-34. Sec Navy, Sept 20, 1916. 

5. Dismissal— Bureau of Navigation recommended that the Navy Department recon- 

sider the claim of a certain naval officer that bis dismissal from the Navy, April 16, 
1833, was the resalt of mistaken identity. Held, That all the evidence in the case 
having previously been fully considered, and it having been decided that the officer's 
naval service is considered '-not creditable," and no new evidence having been 
adduced, the matter is res judicata as far as the Navy Department is concerned. The 
fact that it has been decided by another department of the Government that his 
record should be deemed ere litable is not considered sufficient for the Navy Depart- 
ment to reopen the case. File 26256-111 :2, Sec . Navy, Aug. 9, 1912. 

6. Exception— The only recognized exception to the rule of res judicata is where the appli- 

cation for review is based upon "new facts, a new state of law, or some extraordinarv 
circumstances." (15 Oo. Atty. Gen. 315, 316.) File 11130-6, J. A. G., Dec. 28, 1909, 
p. 5. See also Administration, 6. 

7. General court-martial trial of a paymaster's clerk— Tried and dismissed in 

1911 — Department held that the case was res judicata, and can not be reopened bv the 
executive branch of the Government. File 26251-4858:22, Sec. Navy, Apr. 19, 1916. 

8. Midshipmen— Legality of appointment of midshipmen to Naval Academy. File 

5252-32; 28 Op. Atty. Gen. 180. 

9. Nature of— It is well established by a long line of opinions rendered by eminent Attor- 

neys General, as well as by many judicial decisions, that the head of an executive 
department is not empowered to disturb the decisions of his predecessors in cases 
which have once been finally determined, on the ground that his predecessor has 
erroneously construed the law. Aside from the nonexistence of this power, it was 
well stated by the Attorney General in a very earlv case that " it is but a decent degree 
of respectfor each administration to entertain of its predecessor, to suppose it as well 
qualified as itself to execute the laws according to the intention of their makers: and 
not to set an example of review and reversal, which, in its turn, may be brought to 
bear upon itself, and thus keep the acts of the Executive perpetually unsettled and 
afloat." File 11130-28, Sec. Navy, Feb. 5, 1916. See also File 27231-42:3 and 3, Sec. 
Navy, Mar. 1, 1913; 26287-2959, p. 2; 5252-68, J. A. G., May 15, 1915; 27231-77, Sec. 
Navy, Sept. 19, 1916; 27231-77:1, J. A. G., Oct. 6, 1916. 

"The principle has been so frequently declared that the final decision of a matter 
before the head of a department is binding upon his successor in the same depart- 
ment, under certain well defined exceptions, that it is now entitled to be regarded 
as a settled rule of administrative law." (13 Op. Atty. Gen. 457.) File 26521-169. 
J. A. G., Nov. 14, 1916, p. 4. 

The established doctrine of res judicata has always been of general application in 
the administrative as well as the judicial department of our Government. File 
26521-169, J. A. G., Nov. 14, 1916, p. 4. 
10. Same— "It was decided by this department November 1, 1907, in the specific case 
of * * *, 'that there is no statute explicitly making citizenship a condition 
precedent to eligibility to appointment to the Naval Academy as a midshipman, but 
inasmuch as officers of the Navy must be citizens, a midshipman can not be commis- 
sioned an ensign if he be an alien.' This question, which was thus decided by a previous 
administration, is now res judicata and, according to legal principles which, in this 
country, are as old as the Government itself, can not be reopened." File 26252-71:2, 
Sec. Navy, Aug. 29, 1913. See also File 5252-32, J. A. G., Jan. 26, 1910, p. 3; 20971-19:1, 
J. A. G., Apr. 14, 1913. See also Midshipmen, 8. 



RES JUDICATA. 533 

11. Naval service of an officer. File 26256-111:2. 

12. Promotion, failing in— In a case where an officer failed professionally for promotion. 

Held, " It will be seen that Lieutenant * * * 's case has been carefully reviewed 
and considered by the department on several prior occasions, and that the merits 
thereof have been carefully examined and decided upon by the last administration. 
The questions in connection with Lieutenant * * * 's examination, are, therefore, 
res judicata, and, according to legal principles which, in this country, are as old as the 
Government itself, can not be reopened." File 26260-283:14, Sec. Navy, Nov. 24, 1913. 

13. Reconsideration of certain reports requested— A rear admiral requested the de- 

partment's reconsideration of certain reports made against him (then captain) by 
another officer senior to him. The matter was settled by a former administration. 
Held, "It is thus seen that the former administration clearly and categorically decided 
both the legality and the propriety of this matter, and, after mature consideration, 
decided to regard the incident as closed." 

As to the necessity of having the matter passed upon by the President in order 
to bring it within the doctrine of res judicata. Held, that "as this is clearly a matter 
within the jurisdiction of the Secretary of the Navy, it was unnecessary that it should 
have been passed upon by the President in order to bring it within the doctrine of 
res judicata." File 26836-15, J. A. G., Nov. 17, 1913. 

14. Reprimand — An officer requested further consideration of an action on the depart- 

ment's letter of reprimand. (File 20971-19, Sec. Navy, Aug. 20, 1909.) Held, As the 
case of this officer was settled by the decisions of the previous administration, it must 
now be considered as closed under the settled legal doctrine of res judicata; that is, that 
decided cases should not be disturbed. File 20971-19:1, J. A. G., Sec. Navy, Apr. 14, 
1913. See also Appeals, 13. 

RESCUE. 

1. Collision between a naval vessel and merchant snip— Duty of commanding officer. 
See Collision, 22. 

RESIDENCE. 

1. Foreign country— Effect on citizenship. See Citizenship, 17, 18. 

2. Official— A naval officer requested authority for change of official residence to Hamilton, 

Canada. Held, That officers of the Navy, who are required to be citizens of the United 
States, are also required , in accordance with the customs of the service, considerations 
of policy, and the desirability of maintaining amicable relations with other nations, 
to have their legal residence in the United States or one of its possessions. File 
17606-49, J. A. G., Dec. 17, 1912. See also File 9736-58, Aug. 11, 1915. 

3. Voting— Retired officers. See Voting, 12. 

RESIGNATIONS. 

1. Acceptance necessary— Under the law, as construed by this department (File 

26505-21), the resignation of an officer of the Navy is not effective until it has been 
duly accepted by the President, who possesses the power of compelling the officer 
to remain in the service by declining to accept such resignation." File 28407-16, 
J. A. G., July 31, 1915. 

2. Acceptance not obligatory— Although an officer agreed to tender his resignation in 

case his hearing grew worse, it is not obligatory that it be accepted if tendered. File 
26253-167, J. A. G., Apr. 4, 1911, p. 6. 

3. Attempted withdrawal. See Resignations, 2S. 

4. Communication of acceptance required. File 26543-62:1, J. A. G., Aug. 28, 1911, 

pp. 1-2. 

5. Conditional — An officer was recommended for trial by general court-martial because 

of "over-indulgence in intoxicants while on duty in Guam" to such an extent as to 
incapacitate him from the performance of duty for a period of about t wo weeks. The 
officer presented a conditional resignation, in which ho pledged himself to -abstain 
from the use of all intoxicants during my future career as an officer" in the n a\ al 
service, and "in case of my failure to faithfully cany out the above pledge. I have the 
honor to submit herewith my resignation as an officer" in the navalservice. In view 
of the difficulty of convening a general court -man ial in Guam for his trial, the de- 
partment decided to accept his resignation, to become effective in case of his failure 
to fulfdl his pledge to abstain from the use of all intoxicants during his future career 
as an officer in the naval service. File 2G251-19S9, Sec. Navy. May 14, 1909, 



534 RESIGNATIONS. 

6. Consent of parties to resignation can not be recalled— Where an officer presents 

his resignation which is accepted by the Secretary of the Navy: Held, "The consent 
of the parties to the act of resignation could not be recalled except by the reappoint- 
ment of the same person" in conformity with law. (Comp. Dec. Nov. 25, 1910, file 
26254-578.) See in this connection Mimmack v. U. S., 97 U. S., 436-437; U. S. v. Corson, 
114 U. S., 619. 

7. Courts-martial— Jurisdiction of naval courts-martial over resigned officers. See 

Jurisdiction, 113. 

8. Declined— Resignation may be declined by appointing power. See Resignations, 

1G-19. 

9. Diplomatic service— Acceptance of an appointment in the diplomatic or consular 

service considered as a resignation from naval service. See Diplomatic Officers, 1; 
Retired Officers, 26. 

10. Future date — "A resignation to take effect at a future date may, with the consent of the 

appointing power, provided no new rights have intervened, be withdrawn before the 
time when the resignation was to take effect, and the officer will continue to be an 
officer de jure thereafter." (1 Comp. Dec., 68.) See Comp. Dec., Nov. 25, 1910, File 
26254-578. 

11. Good of service— Resignations have been accepted by the President for the good of the 

sen-ice. G. C. M. Rec. 14462, 23453, 26375; File 26251-10701, Sec. Navy, Aug. 26, 1915. 
See also Commissions, 21; Pardons, 44. 

12. "Immediate and unconditional "—"A resignation in terms 'immediate and un- 

conditional' means an entire severance of an officer's connection with the army." 
(Turnley v. U. S., 24 Ct. Cls., 31S.) Comp. Dec. Nov. 25, 1910, File 26254-578. 

13. Insanity of an officer. File 27231-51:1, J. A. G., Feb. 24, 1913. 

14. Letter of resignation — "A letter of an officer requesting permission to resign which 

was regarded by both the Secretary of the Navy and the officer as a tender of resig- 
nation, and its acceptance by the Secretary as a resignation, operates to remove the 
officer from the service." (5 Comp. Dec. 419.) Comp. Dec. Nov. 25, 1910, File 
26254-578. 

15. Midshipmen— Physically disqualified. See Midshipmen, 22. 

16. Not necessary to accept— In American and English Encyclopedia of Law (vol. 23, p. 

422) it is stated: "In England it is the invariable rule that without the consent of 
competent authority no officer can divest himself of the performance of the duties of 
the office to which ne was elected or appointed, and in the United States this doctrine 
has been adopted in some jurisdictions, but in other jurisdictions the common law 
on this subject has been held inapplicable to the incumbents of office under the 
American form of government." The Supreme Court of the United States in Edwards 
v. U. S. decided in 1880 (103 U. S., 471), that the common-law rule, "namely, that a 
resignation must be accepted before it can be regarded as complete," must prevail in 
this country, unless it can be shown that such rule has been plainly abrogated by 
legislation; and, referring to a statute of Michigan, which it was contended had the 
effect of changing the common-law rule, the Supreme Court further said: "To hold it 
[the common-law rule] to be abrogated would enable every officeholder to throw off 
his official character at will, and leave the community unprotected. We do not think 
that this was the intent of the law." 

The United States Supreme Court also quoted with approval Hoke v. Henderson 
(4 Dev. L. 1) in which Mr. Justice Ruffin, speaking for the Supreme Court of North 
Carolina said: 

" An officer may certainly resign; but without acceptance his resignation is nothing, 
and he remains in office. It is not true that an office is held at the will of either party. 
It is held at the will of both. Generally resignations are accepted; and that has been 
so much a matter of course with respect to lucrative offices, as to have grown into a 
common notion that to resign is a matter of right. But it is otherwise. The public 
has a right to the services of all the citizens, and may demand them in all civil depart- 
ments as well as in the military. Hence there are on our statute book several acts to 
compel men to serve in offices. Every man is obliged, upon a general principle, after 
entering upon his office, to discharge the duties of it while he continues in office, and 
he can not lay it down until the public, or those to whom the authority is confided, 
are satisfied that the office is in a proper state to be left, and the officer discharged." 



RESIGNATIONS. 535 

The case of U. S. v. Wright (1 McLean, 509) was cited in the Edwards case as indi- 
cating a contrary doctrine, but was not concurred in by the Supreme Court. How- 
ever, even in the Wright case, the doctrine laid down was merely "that a civil officer 
has a right to resign his office at pleasure and it is not in the power of the Executive to 
compel himtoremain in office." It would hardly be contended that such a doctrine,, 
even had it been sustained by the Supreme Court, would apply to officers in the 
military or naval service, for so to hold would threaten not only the efficiency and 
discipline of these branches of the public service, but would endanger their very 
existence; as ; carried to its ultimate conclusion, it would enable military and naval 
officers to relieve themselves of the responsibilities of command at pleasure, and even 
in the face of the enemy. That this was not intended by Congress is made evident 
by article 10 of the Articles for the Government of the Navy (sec. 1624, R. S.) which 
provides that 

"Any commissioned officer of the Navy or Marine Corps who, having tendered his 
resignation, quits his post or proper duties without leave, and with intent to remain 
permanently absent therefrom, prior to due notice of the acceptance of such resig- 
nation, shall be deemed and punished as a deserter." 

Furthermore, the commissions issued to officers of the Navy expressly provide: 
"This commission to continue in force during the pleasure of the President of the United 
States for the time being." When an officer of the Navy accepts his commission and 
executes the oath of office he does so with full knowledge of this clause contained in 
the commission, and of the law above quoted which makes him guilty of desertion if 
he quits his post after resigning, prior to the acceptance of his resignation. 

In view of the foregoing: Held, That the resignation of an officer of the Navy is not 
effective until it has been duly accepted by .the President, who possesses the power 
of compelling the officer to remain in the service bv declining to accept such resig- 
nation. File 26505-21, J. A. G.,Mar. 17, 1913. See also File 26262-2146; Mimmack v. 
U. S. (10 Ct. Cls. 600), concurring opinion of Nott, J.; Barger v. U. S. (6 Ct. Cls. 38, 39); 
Robertson v. Baldwin (165 U. S., 275) as bearing on involuntary servitude; Wales v. 
Whitney (114 U. S., 564) as bearing upon the right of a naval officer to a writ of habeas 
corpus. The above opinion of the Judge Advocate General was accepted by the 
Secretary of the Navy " as embodying the law on the subject." File 26505-21, Sec. 
Navy, June 28, 1915. See also File 26505-30: 2, Sec. Navy, Jan. 3, 1917. 

17. President may decline to accept— The President possesses the power of compelling 

an officer to remain in the naval service by declining to accept his resignation. See 
Resignations, 16, 18-19. 

18. Same — "The department has the right, and has frequently exercised it, of refusing to 

accept an officer's resignation. "File 26251-6149:4, June 24, 1912, p. 4. See also 
Resignations, 16, 17, 19. 

19. Same— The law is well settled that the President possesses the power of compelling an 

officer to remain in the naval service by declining to accept his resignation. (See File 
26505-21; 26262-2146.) As this question has long since been judicially determined, 
it would seem unnecessary in any case to request the opinion of the Attorney General 
thereupon inasmuch as the latter has himself repeatedly held that he is bound by the 
decisions of the United States courts of competent jurisdiction. Furthermore, the 
Attorney General has heretofore expressly held that "the resignation of a military 
officer does not take effect until accepted by the proper superior authority." And t he- 
Court of Claims, at an early date in a case where the acceptance of an officer's resigna- 
tion was not communicated to him for more than a year after it was tendered, the 
officer in the meantime being required to perform duty, decided: "The claimant 
had no alternative but to do the duty to which he was commanded bv his colonel. 
He could not compel an acceptance of his resignation, and until he was informed that it 
had been accepted he was as much a soldier as ever, and liable to punishment as a de- 
serter had he abandoned his duty." File 26505-28, J. A. G., Nov. 17. 1915; C. M 
42, 1915, 12-13. 

20. Refusal to accept. See Resignations, 16-19. 

21. Restoration of resigned officers— An officer who has resigned can not be restored to 

the naval service except by reappointment. (25 Op. Attv. Gen. 57;': 20 A and E 
Enc.636; Mimmack v. U. S.,97 U. S. 426.) File 5252-73. J. A. Q., Oct. 1. 1915, 

In Mimmack v. United States (97 IT. s. 426) the officer's resignal Ion was accepted 
by the President, who. later, revoked the acceptance. The Supreme Court decided 
"that the office became vacant when the incumbent was notified thai his resignation 
had been accepted;" and "that the subsequent action of the President did not re- 
store the petitioner to the military service." File 5252-73, J. A. Q,, Oct. l. 1915, 



536 RESIGNATIONS. 

22. Same — A man who is once legally out of the sen-ice assumes a civilian status and is 

subject in case of reappointment to the same rules as govern other civilians. File 
28554-199:1, J. A. G., Nov. 2, 1915. 

"In all cases the principle is the same. By which of several legal methods an officer 
goes out of the service by the act of the President, whether by his approval of a sentence 
by a court-martial, his acceptance of a voluntary resignation, or his approval of the 
finding of a retiring board, makes no particular difference. In each case the question 
is whether he is entirely and legally out; if so the Constitution takes hold of the case, 
and, regardless of how he got out, directs the only mode of return. * * * 

"We go no farther than to hold that restoration is not accomplished through revo- 
cation. This is the plain rule prescribed in the Constitution, decided by the Su- 
preme Court, declared by Congress, advised by the Attorney General, and recognized 
by the Judge Advocates General of the Army. It must be satisfactory to the Presi- 
dent, because it relieves him from private importunity and possible imposition. 
It is satisfactory to the officers remaining in the service, because it relieves them from 
the constant apprehension and danger of being jostled out of their proper places by 
irregular or illegal intrusion." (Vanderslice v. U. S., 19 Ct. Cls. 484). File 5252-73, 
J. A. G., Oct. 1, 1915. 

" Where the connection of an officer with the service has been severed by his resig- 
nation, discharge, or dismissal, he can be reinstated only by a new appointment. 
* * * The mere revocation of the acceptance of his resignation or of the order 
terminating his connection with the service can not have this effect." (A. and E. 
Ency. Law, Vol. 20, pp. 636, et seq.). File 5252-73, J. A. G., Oct. 1, 1915. 

23. Revocation of acceptance. See Resignations, 21, 22. 

24. Secretary of the Navy — Is the proper administrative officer to accept the resignation 

of a naval officer for the President. See Administration, 8; Resignations, 28. 

25. Takes effect— Resignations do not take effect until accepted by the proper superior 

authority. See Resignations, 16-19. 

26. Unqualified resignation— "If the resignation is unqualified it takes effect imme- 

diately upon its unqualified acceptance, or at least when the officer receive notice 
of the acceptance." (1 Comp. Dec. 70.) Comp. Dec, Nov. 25, 1910, File 26254-57S. 

27. Withdrawal after acceptance— "It follows, then, that the attempted consent of the 

Secretary of the Navy to the withdrawal of the cadet's resignation after acceptance 
thereof had no legal effect whatever. Comp. Dec. Nov. 25, 1910, File 26254-57S. 

28. Withdrawal, attempted — A naval officer, on duty in Samoa, under serious charges, 

formed the intention of relinquishing his office in the Navy, and manifested this in- 
tention by placing his resignation in the hands of his commanding officer, who was 
the proper officer to receive same in accordance with explicit provisions of the Navy 
Regulations which have been judicially upheld. Said resignation was to take effect 
on a certain date, approximately seven weeks after it was presented to the command- 
ing officer. The commanding officer cabled the officer's intention to resign to the 
Secretary of the Navy, recommending that it be accepted, and at the same time 
further recommending that "if department is willing to accept resignation" the 
officer be ordered home by merchant steamer, which was accordingly done by cable- 
gram. The Secretary of the Navy expressly approved the recommendation of the 
Chief of the Bureau of Navigation that the resignation be immediately accepted for 
the good of the service, to take effect upon his arrival in the United States. Thereafter 
while en route to the United States, this officer cabled the Secretary of the Navy, 
"resignation withdrawn." Held, That the resignation was legally accented by the 
President, through the proper administrative officer, and the orders issued this officer 
to return home constituted a notification to that officer that his resignation was ap- 
proved, although even without such notification the resignation was placed beycnd 
his power to recall. Accordingly it was advised (a) that this officer's attempt to 
withdraw his resignation was ineffectual, said resignation theretofore having been 
accepted, and the accepting authoritv not having consented to its withdrawal: and 
(6) that the officer be notified to this effect. File 26262-2146:4, J. A. G., Oct. 30, 1915; 
C. M. O. 42, 1915, 13. 

RESISTING AND STRIKING THE POLICE AUTHORITIES OF THE SHIP 
WHILE IN THE EXECUTION OF THEIR DUTIES. 

1. Enlisted man— Charged with. C. M. O. 21, 1887. 



RESTRICTION. 537 

RESISTING ARREST. See also Arrest. 

1. Civil authorities— Resistance to arrest by a naval officer. See Resisting Arrest, 5. 

2. Coal heaver— Charged with. CM. O. 36, 1886. 

3. Fireman, first class— Charged with. C. M. O. 23, 1910 5 

4. Officer— Charged with. C. M. O. 59, 1904, 2; 1, 1917. 

5. Same— In administering a public reprimand adjudged as part of a sentence by a general 

court-martial the Secretary of the Navy stated in part: "You are especially ad- 
monished that one of the first duties of a commissioned officer is to pay due respect at all 
times, and under all circumstances, to constituted authority, civil as well as military 
Kesistance to arrest by an officer of the law is a grave matter under any circum stances, 
and is particularly inexcusable on the part of officers of the military and naval service 
who should recognize m their conduct the propriety of yielding unhesitating obedience 
59 1904 2 egU ' order and P rotestin g> if necessary, afterwards." C. M. O. 

6. Landsman— Charged with. C. M. O. 161, 1902. 

RESISTING ARREST AND ASSAULTING A CHIEF PETTY OFFICER. 

1. Charge— Criticized by department. See Charges and Specifications, 53. 
RESPECT. 
1. Essential— Respectfulness, in language and attitude toward superiors, is essential to 
o discipline and efficiency. C. M. O. 15, 1914. Seealso C. M. O. 38, 1914, 2 

^ecomm "sel oSerI, MsT* ** aUthority ' law ' regulations, and gentlemanly 

RESPONSIBILITY FOR CRIME. 

1. "Right and wrong" test should be applied— The rule for determining criminal 

responsibility in law is the capacity of the accused to distinguish between right and 

InSt? 35 r 36 erenCe P^ticular act. C. M. 0. 24, 1914, 8; 51, 1914, 4. See also 

RESPONSIBILITY OF COMMANDING OFFICERS. See COLLISION, 6, 17, 19 22- 
Commanding Officers, 35-38. ' ' ' ' 

RESTITUTION. See Debts, 23. 

RESTORATION OF CITIZEN RIGHTS OF DESERTERS. See Deserters; 

RESTORATION OF DISMISSED OFFICERS. See Dismissal, 23; Legislation, 5. 

RESTORATION OF NUMBERS LOST BY SUSPENSION FROM PROMOTION 

See Promotion, 103, 155, 156. "»"iuunu«. 

RESTORATION OF RESIGNED OFFICERS. See Resignations, 21, 22. 
RESTORATION TO DUTY. 

1. Deserter— Effect of. See Deserters, 24. 

2. Fraudulent enlistment-Ratification of a fraudulent by restoration to dutv See 

Fraudulent Enlistment, 75. * ' 

3. Officer— Court-martial order in proper cases should so state. See Arrest 9 27 

4. Pardon— Restoration to duty by the Secretary of the Navy is never a pardon. See 

RESTORATION TO DUTY OF DESERTERS. 

1. Citizenship— Effect on. See Deserters, 24; Jeopardy, Former, 32. 
RESTRICTION. 

1. Close confinement-Where restriction rather than close confinement bv a general 

court-martial. See Confinement, 20. - a general 

2. Definition. Sec Confinement, 20. 

3. Jeopardy, former. See Jeopardy, Former, 33. 

4. Secretary of the Navy mitigated confinement to restriction-Department miti- 

gated a sentence in vol vrng confinement at hard labor to "restriction to the m "of 
the barracks or ship to which he may be attached-at present tho i, Vine I ■ rr M&s 
navy yard, League Island, Pa.,"etc. C. M. 0.167, 1902, 3. Seealso C S ct St 1' 

5. Sentence-"To be restricted to the limits of the post/station, or shfp '%tc StC T'o 

95, 1893, 3; 12, 1899, 3; 236, 1902; 167, 1902, 3: 13. 1910: 7. 1912? 8 191'> 24 1013 40 
1913; 21, 1914; 46, 1915; 21, 1916; 28, 1916; G. C. M. Rec. 2930S, p 3 ' ' *" 



538 RESTRICTION. 

6. Summary courts-martial— A fireman first class, United States Navy, was tried by 

summary court-martial and sentenced among other things "to be restricted to the 
limits of the ship for a period of 30 days." 

In view of the fact that "restriction to the limits of the ship'' is not one of the punish- 
ments which a summary court-martial is authorized to adjudge, that part of the sen- 
tence involving restriction was set aside by the department. (See A. G. N. 30; C. M. 
O. 21, 1910, p. 17; 1, 1911, p. 3; 33, 1914, pp. 4-6; Index-Digest, 1914, p. 38.) File 
26287-3315, Sec. Navy, Feb. 15, 1916; C. M. O. 5, 1916, 6. 

7. Same— Convening authority of a summary court-martial may mitigate "confinement" 

to "restriction." See Confinement, 8. 

RETENTION IN SERVICE AFTER EXPIRATION OF ENLISTMENT. See 

Enlistments, 8-11. 

RETIRED ENLISTED MEN. 

1. Active duty, not subject to — The Bureau of Navigation requested opinion as to 

whether or not retired enlisted men of the Navy could be ordered to duty at shore 
stations in case of an emergency. The following is the reply of the Judge Advocate 
General: "In the department's letter to the bureau, August 27, 1909 (File 7657-57) it 
was said 'An enlisted man in the Naw, when placed on the retired list, is no longer 
subject to orders for active dutv.' " File 7657-186. J. A. G., May 20, 1913. See also 
File 10438-03, J. A. G.; 7657-123, Sec. Navy: 7657-57, Sec. Navy, Aug. 27, 1909; 
Retired Enlisted Men, 9. But see Act of March 3, 1915 (38 Stat. 941); Act of 
Aug. 29, 1916, modifying this. 

2. Alderman (councilman) of Annapolis, Md.— There is no federal law to prevent a 

chief yeoman, retired, from holding the office of alderman, to which office he had been 
elected. File 7657-150, J. A. G., May 9, 1912; 27231-3, J. A. G., Nov. 1, 1909. Note.— 
It was reported that this retired enlisted man resigned as councilman owing to a 
doubt as to his qualifications under State law. 

3. Civil positions — The employment of retired enlisted men of the Navy in civil positions 

under the United States is'not contrarv to any Federal law or Navy regulation. File 
7657-123, J. A. G., Dec. 29, 1911; File 7657-57, Sec. Navy, Aug. 27, 1909. 

4. Court-martial— Retired enlisted men tried by. See Army Digest, 1912, p. 1001. 

5. Deposits — It is the practice of the department, when enlisted men are transferred from 

the active list to the retired list finally, to pay them as enlisted men and to give them 
their deposits with interest. File 28550-22, Sec. Navy, Nov. 24, 1916. 

6. Instructors — At naval or military schools. See File 7657-361, J. A. G., May 6, 1916. 

-See also Retired Enlisted Men, 10, 12. 

7. Naval Instructions, 1913, 1-4893— An enlisted man was retired before expiration 

of enlistment and had a certain amount of his pay "deducted " because of the oper- 
ation of 1-4893 upon court-martial sentences involving loss of pay: Held, Since, if the 
man's enlistment had expired on the date of his retirement, he would be entitled to 
only an "ordinary discharge," his accounts should be checked one-half the amount 
of pav "deducted "bv reason of sentence. (See CM. 0. 12, 1915, p. 12; File 26806-131: 
32.) 'File 27210-302, J. A. G., Oct. 25, 1915; Sec. Navy, Oct. 25, 1915; C. M. O. 35, 
1915, 10. 

8. Naval or military schools. See Retired Enlisted Men, 6, 10, 12. 

9. Not a part of Navy— An enlisted man of the Navy, when placed on the retired list, is 

no longer subject to orders for active duty; his connection with the service is severed; 
and he can not thereafter be said to be a component part of the Navy. (Murphy v. 
U. S., 38 Ct. Cls., 511, 521.) File 7657-57, Sec. Navy, Aug. 27, 1909, quoted in File 
7657-123, J. A. G., Dec. 29, 1911, p. 4. See also Retired Enlisted Men, 1. But see 
Act of March 3, 1915 (38 Stat. 941); Act of August 29, 1916, modifying this. 

10. Petty officers— As instructors at naval and military schools. See File 7657-361, J. A. 

G., May 6, 1916. See also Retired Enlisted Men, 6, 12. 

11. Reenlistment — The mere fact that an enlisted man of the Marine Corps has been 

placed on the retired list, does not bar him from reenlistment, provided ne is physi- 
cally and otherwise qualified . I ile 10438-03. 

12. Schools, naval and military— Retired enlisted men as instructors at. See File 

7657-361, J. A. G., May 6, 1916. See also Retired Enlisted Men. 6. 10. 

13. Transportation— Retired enlisted men to their homes. File 7657-389, Sec. Navy, 

Sept. 25, 1916. 

14. Same— Where the home is "bevond the continental limits of the United States." 

File 7657-389, Sec. Navy, Sept. 25, 1916. 



KETIKED OFFICEKS. 539 

RETIRED OFFICERS. 

1. Active duty— The act of August 22, 1912 (37 Stat. 329), provides that "hereafter any 

naval officer on the retired list may, with his consent, in the discretion of the Secretary 
of the Navy, be ordered to such duty as he may be able to perform at sea or on shore," 
etc. Held, To apply to Marine officers. File 26280-61. 

2. Same— Marine officers ordered to active duty after June 6, 1912. See Retired Offi- 

cers, 45. 

3. Boatswain, retired— Tried by general court-martial. G. C. M. Rec. 32614: C. M. O. 

34, 1916. 

4. Carpenter, retired— Tried by general court-martial. C. M. O. 4S, 1907. 

5. Chief boatswain, retired— Tried by general court-martial. C. M. O. 15, 1915. 

6. Chief of Bureau— Retired officer not eligible for appointment as chief of bureau. 

File 21, Nov. 25, 1902; 15315-5. See also Bureau Chiefs, 14. 

7. Citizenship— Of retired officer living abroad ^definitely. See Citizenship, 17, 18; 

Retired Officers, 32. 

8. Civil office or employment. See Retired Officers, 28, 31. 

9. Civil service — An officer on the retired list may take the civil-service examination, and 

his status on the retired list does not preclude him from taking an examination or 
accepting a clerical position in the customhouse, assuming the compensation of such 
position to be less than $2,500 per annum, subject to possible recall to active duty. 
File 4901-04; 5650-00; 4642-63. 

10. Civil War service— Retired officer advanced for Civil War service. See Civil War 

Service, 5, 6. 

11. Commandant of the Marine Corps— See Marine Corps, 47. 

12. Commander in chief of a fleet — Retaining an officer as commander in chief of a fleet 

after he has been placed on the retired list because of age. File 27231-75, J. A. G., 
July 24, 1916. 

13. Commercial attache. See File 27231-67, J. A. G., Aug. 20, 1915; Sec. Navy, Aug. 23, 

1915. See also Retired Officers, 26, 34. 

14. Commissions. See Commissions, 17, 18, 31. 

15. Commissions of marine officers on retired list— Change of date requested. See 

Commissions, 17, 18. 

16. Compensation— Whether or not the compensation of a retired officer is "pay," 

"pension," or "bounty." 

That Congress can increase or dimmish the compensation of officers in Government 
service is well recognized, and the same is true of pensions. 

A retired officer is entitled to receive his pay, whatever may be its character, free 
from any deductions that are not plainly provided for by law. But he may relinquish 
all or part by his express assent. 

The Comptroller of the Treasury has held that retired pav is not compensation, but 
a pension. File 9736-18, J. A. G., June 25, 1910, p. 15. See also Collins v. U. S., 15 
Ct. Cls. 22, 40; Fletcher v. U. S., 26 Ct. Cls. 541, 563. 

17. Comptroller's jurisdiction— The act of June 29, 1906 (34 Stat. 554), provided that 

retired officers of the Navy under certain conditions should be entitled to the rank 
and retired pay of the next higher grade. The question of increased pay under this 
law was a matter under the jurisdiction of the Comptroller of the Treasury, while the 
question of increased rank was a matter under the jurisdiction of the Secretary of the 
Navy. File 26254-1451: 11, J. A. G., Apr. 12, 1915, p. 17. 

18. Congress— An opinion was requested upon the following question: 

"Is it within the law and the Regulations of the Navy, for a rear admiral, retired, 
to go to Congress, and retain his commission in the Navy, provided he declines all 
compensation, or pay for his services in Congress, and will resign his seat in Congress 
whenever the Navy Eepartment shall require his naval services." Held, That the 
question presented is one not under the cognizance of the Judge Advocate General 
and upon which he is not authorized to render an official opinion. 

The following remarks, made by the Attorney General in an opinion rendered 
March 26, 1897 (21 Op. Atty. Gen., 510), to the Secretary of War, are pertinent in this 
connection: 

"It may be, and doubtless is, a subject of reasonable interest, and perhaps of great 
anxiety, to officers of the United States Army on the retired list to ascertain 'if an 
officer on the retired list of the Army can accept a diplomat ic or consular appointment 
and still hold his position on the retired list with rank and pay.' 



540 RETIRED OFFICERS. 

"But, manifestly, the solution of that question by any retired officer of the Army, 
and the course of conduct which he may adopt in pursuance of such solution, is"a 
matter of his private concern only, and not a subject with which the United States 
can be concerned until some action has been taken by such officer. * * * 

"If Lieutenant * * *, or any other retired officer, should be called upon to 
determine such question in his own case , the obvious course for him to pursue is that 
which is open to every person inclined to pursue a course as to the legal consequences 
of which he is in ignorance or doubt. He should seek the advice of private counsel, 
learned in the law, and obtain their opinion, for which, if given without due care, 
such counsel can be held to a personal accountability. 

"The whole matter, as it seems to me, is one strictly of private concern and in no 
sense of public interest." (21 Op. Atty. Gen. 510.) 

"Each House shall be the judge of the elections, returns, and qualifications of its 
own Members." (Constitution, Art. I, sec. 5, cl. 1.) 

"* * * No person who holds an office the salary or annual compensation attached 
to which amounts to the sum of $2,500 shall be appointed to or hold any other office 
to which compensation is attached unless specially heretofore or hereafter specially 
authorized thereto by law; but this shall not apply to retired officers of the Army or 
Navy whenever they may be elected to public office or whenever the President shall 
appoint them to office by and with the advice and consent of the Senate." (Act, 
July 31, 1894, 28 Stat. 205). 

"That unless otherwise specially authorized by law no money appropriated by 
this or any other Act shall be available for payment to any person receiving more than 
one salary when the combined amount of said salaries exceeds the sum of $2,000 per 
annum, but this shall not apply to retired officers of the Army , Navy , or Marine Corps 
whenever they may be appointed or elected to public office, or whenever the President 
shall appoint them to office by and with the advice and consent of the Senate or to 
officers and enlisted men of the Organized Militia and Naval Militia in the several 
States, Territories, and the District of Columbia." (Act May 10, 1916, sec. 6 (39 Stat. 
120). See also Act of Aug. 29, 1916 (39 Stat. 582).) 

Attention invited to the authorities collected in volume 2 of the American and 
English Annotated Cases (pp. 378-382) , with reference to the holding of incompatible 
offices by one person, and what constitutes incompatibihty. 

Maj. Gen. Sickles, while a retired officer of the Army, held aseat in Congress, and 
under date of December 5, 1893, his status was the subject of an opinion by the At- 
torney General, published in volume 20 of the Attorney General's opinions, at page 
686. It was there held by the Attorney General that "the question whether Con- 
gressman Sickles can receive pay as a retired Army officer is one of grave doubt , which 
only a determination of the Supreme Court can satisfactorily settle,'' this doubt be- 
ing stated by the Attorney General to be due in part to the provisions of Article I, 
section 6, clause 2, of the Constitution, providing that "no person holding any office 
under the United States shall be a member of either House during his continuance 
in office." 

There has been no decision of the Supreme Court of which I am aware rendered since 
the Attorney General's opinion above cited, and the only material changes in the law 
are contained in the acts of July 31 , 1894, and May 10, 1916, above quoted. In addition, 
the laws now in force relating to the assignment of retired naval officers to active duty 
are different from those which were in force with reference to retired Army officers 
at the time the Attorney General's opinion was rendered, and this might possibly 
have a bearing upon the status of retired naval officers with relation to the consti- 
tutional provision last above quoted. 

In connection with the suggestion with reference to declining compensation or pay 
for services in Congress, it was decided by the Supreme Court of the United States, 
February 21, 1916, in the case of U. S. U.Andrews (240 U. S., 90), that "public policy 
prohibits any attempt by unauthorized agreement with an officer of the United States 
under guise of a condition or otherwise to deprive him of the right to pay given by 
statute." File 27231-74, J. A. G., May 12, 1916. 

19. Consular appointment. See 21 Op. Atty. Gen. 510; R. S., 1223; R. S. 1440; Re- 

tired Officers, 26; Diplomatic Officers, 3. 

20. Corporations — Employment of retired officers by. See Retired Officers, 28, 31. 

21. Counsel in court-martial trials— Compensation prohibited. See Counsel, 17. 

See also File 27231-60 as to right of a retired officer, who was a member of the bar, to 
receive compensation for acting as counsel in a court-martial trial from an accused 
enlisted man. 



RETIRED OFFICERS. 541 

22. Courts-martial — Retired officers are subject to jurisdiction of naval courts-martial. 

See Jurisdiction, 114; Retired Officers, 3-5, 33, 74. 

23. Court-martial duty— If an officer is retired while sitting as a member of a court- 

martial, specific orders for bis continuance on such duty are required and a copy 
thereof should be attached to the record of each case as a modification of the precept. 
Where the record failed to show that such orders had been issued the department 
held that such would not invalidate the proceedings since such orders were in fact 
issued to said retired officer. C. M. O. 23, 1910, 5. See also Court, 49. 

24. Culebra, P. R.— Health officer. See Appointments, 35; Retired Officers, 40. 

25. Death gratuity— Not payable in case of retired officers. See Retirement of 

Officers, 20. 

26. Diplomatic appointments— "Under section 1440, R. S., if a retired officer accepts 

an appointment in the diplomatic or consular service of the Government he shall be 
considered as having resigned his place in the Navy" (File 9736-18, J. A. G., June 25, 
1910, pp. 1, 15, 16, 19). "And this includes retired officers of the Navy." (File 
27231-3, J. A. G., Nov. 1, 1909. See also File 12-4, Nov. 15, 1906; 27231-3, J. A. G., 
Nov. 1, 1909; 26255-234; 21 Op. Atty. Gen. 510; R. S. 1223; Diplomatic Officers, 1, 
3; Retired Officers, 18. 

27. Director of a corporation. See Retired Officers, 34, 36. 

28. Domestic corporations— The act of June 10, 1896 (29 Stat. 361), provides that it is 

unlawful for any officer in the Navy or Marine Corps on the active or retired list to 
be employed by any person or company furnishing naval supplies or war material 
to the Government. (See C. M. O. 29, 1915, p. 11.) 

Whether a retired officer may or may not accept any civil position is a question to 
be determined by him upon his own responsibility, as the Government would not be- 
come interested in the matter unless and until he should have accepted illegal employ- 
ment. (File 9736-15, Sec. Navy, Mar. 28, 1910; 9736-18, J. A. G., June 25, 1910, 
quoting 21 Op. Atty. Gen., 510.) File 9736-60, Sec. Navy, Oct. 9, 1915; C. M. O. 35, 
1915, 11. 

There is no law which would prohibit a retired naval officer from accepting em- 
ployment as president of a corporation in the United States not engaged in business 
with the United States Government. File 9736-55, J. A. G., Aug. 11, 1915; C. M. O. 
29, 1915, 11. 

29. Employment of. See Retired Officers, 18, 26, 28, 31, 34-37, 42. 

30. Expatriation. See Retired Officers, 31. 

31. Foreign corporations— The act of June 10, 1896 (29 Stat. 361), relating to the employ- 

ment of officers by Government contractors , is still in force . There is no statute which 
would prevent the employment of a retired officer of the naval service "by a foreign 
company manufacturing war munitions," provided it does not furnish its product to 
the United States Government. 

In this connection attention is invited to an opinion of the Judge Advocate General 
dated December 17, 1912 (File 17606-49, Nav. File 7032-26; Naval Instructions, 1913, 
1-705), concerning the residence of naval officers in foreign countries, the citations 
contained in which letter should be of interest in the present case, particularly the 
State Department's decisions that "by the general law, as well as by the decisions of 
the most enlightened judges both in England and in this country, a neutral engaged 
in business in an enemy's country during war is regarded as a citizen or subject of 
that country * * * ;" that a person who voluntarily takes up his residence in 
another country "contributing his labor, talents, or wealth, to the support of society 
there," may be regarded as having waived his right of protection from his own govern- 
ment; and that such facts may become material upon the question whe ther he has not 
expatriated himself and voluntarily relinquished his rights as a citizen of the United 
States. (See 3 Moore's Digest of International Law, pp. 759-760.) 

The question whether a retired naval officer should be permitted to reside in a 
foreign country and engage in business with a foreign company manufacturing war 
munitions is one of policy, which should be given verv thoughtful consideration. 
File 9736-58, J. A. G., Aug. 11, 1915; C. M. 0. 29, 1915, 11. Seealso File 9736-67, J. A. G ., 
May 16, 1916. 

32. Foreign country — Living in a foreign country indefinitely — Question does not come 

under the jurisdiction of the Navy Department but should be submitted to the De- 
partment of State. File 9212-35, J. A. G., Apr. 9, 1913. 



542 RETIRED OFFICERS. 

33. General court-martial— Retired officers tried by— Boatswain (G. C. M. Rec. 32614; 

C. M. O. 34, 1916); carpenter (C. M. 0.48, 1907); chief boatswain (C.M.0. 15,1915); 
rear admiral (C. M. 0. 41, 1915); second lieutenant, Marine Corps (C. M. O. 23, 1896). 
See also Jurisdiction, 104. 

34. Government contractors— Employment of officer by, prohibited— Employment as 

director of a company furnishing supplies to the Government is not legal. File 
9736-9. See also File 9736-12, Sec. Navy, Dec. 4, 1909. 

The naval appropriation act of June 10, 1896 (29 Stat. 361), forbids the employment 
of any officer of the Navy or Marine Corps on the active or retired list by a firm or 
company furnishing naval supplies or war material to the Government. However, 
if the Navy Department desires to promote American trade in a foreign country it 
may detail an officer at the expense of the Government, and as the representative 
thereof to assist such persons whose interests, in the opinion of the Secretary of the 
Navy, justify such proceedings. File 6077-32 : 4, Apr. 18, 1911; 9736-35, Sec. Navy, 
June 20, 1913; 9736-36, Sec. Navy, June 20, 1913. 

35. Same — If a naval officer has accepted employment with a person or company furnishing 

naval supplies or war material to the Government in violation of the act of June 10, 
1896 (29 Stat. 361 ), there is no doubt that he may be brought to trial therefor by general 
court-martial notwithstanding the fact that he has returned the amount of his retired 

Eay to the Government. No officer of the Navy or Marine Corps has heretofore been 
rought to trial by general court-martial for violation of the law cited above. Should 
evidence be obtained sufficient to establish that a company by which a naval officer is 
employed is in fact engaged in furnishing naval supplies or war material to the United 
States Government, the question whether he should be brought to trial therefor by 
court-martial or otherwise dealt with is one of policy not under the cognizance of the 
office of the Judge Advocate General. File 9736-61 : 1, J. A. G., Aug. 28, 1916. 

36. Same — Under the act of June 10, 1896 (29 Stat. 361), a retired naval officer cannot accept 

employment as assistant superintendent of motive power with a company furnishing 
naval supplies or war material to the Government, even though such officer has 
nothing to do with the manufacture or sale of products. Same, as to acceptance of 
position as "director" of a company furnishing supplies to the Navy. File 9736-9, 
J. A. G., June 25, 1910, p. 17. See also File 9736-14, Sec. Navy, Jan. 9, 1910. 

37. Same— The employment of a retired officer as superintendent or foreman with con- 

tractors performing work on contracts at a naval training station is specifically pro- 
hibited by law, and the department would consider the acceptance of such employ- 
ment as in the highest degree objectionable. (File 9736-17, Sec. Navy, May 26, 1910.) 
File 9736-1, J. A. G., June 25, 1910, p. 18. 

38. Hague Conference — The President can appoint a retired officer of the Navy as a 

delegate to the Hague Conference, section 1440, R. S., providing that if any officer 
of the Navy accepts or holds an appointment in the diplomatic or consular service he 
shall be considered as having resigned his place in the Navy, does not affect his eligi- 
bility, nor does the Dockery Act of July 31, 1894 (28 Stat., 205), prohibiting any person 
who holds an office under the Revised Statutes at a salary of §2,500 or over from 
holding any other office under the United States to which compensation is attached. 
File 9947-93, J. A. G., May 20, 1912. 

39. Harbor master— A chief boatswain retired was elected to the position of harbor master 

and the department held that there was no Federal law or regulation prohibiting him 
from holding the position in question. File 9736-69, J. A. G., Aug. 11, 1916. 

40. Health officer— A retired naval surgeon can not be appointed to the position of health 

officer of Culebra, P . R. See Appointments, 35. 

41. Jury duty— If a retired officer is summoned before a United States court for jury duty, 

he should urge to the judge the objection arising from his military status, to his serving 
on a civil jury. See Jury, 13. 

Retired officers of the Navy are not exempted by the Federal statutes from service 
as jurors on State courts. The question as to whether a retired officer should be 
required to serve in such capacity is one for the court to decide and is affected by the 
possible interference of such service with a retired officer's liability to be assigned to 
active naval duty in accordance with law. File 21090-5, Solicitor, Nov. 8, 1912. See 
also File 21090-5:1, J. A. G., Nov. 9, 1912, to the same effect. 

Under the laws of some States the holder of an office under the United States, whose 
official duties, at the time, prevent his attendance as a juror, is exempt. File 21090- 
5: 1, J. A. G., Nov. 9, 1912. 



RETIRED OFFICERS. 543 

42. Legality of employment must be determined by the officer or enlisted man— 

Whether a retired officer may or may not accept any civil position is a question to be 
determined by him upon his own responsibility, as the Government would not 
become interested in the matter unless and until he should have accepted illegal 
employment. (File 9736-18, J. A. G., June 25, 1910, quoting 21 Op. Atty. Gen., 510; 
9736-15, Sec. Navy, Mar. 28, 1910.) File 9736-60, Sec. Navy, Oct. 9, 1915; C. M. O. 
35, 1915, 11. 

43. Major general, commandant— Retired marine officer can not be appointed as. See 

Mabine Corps, 47, 48. 

44. Marine officers— A retired marine officer is eligible to detail to service as a teacher or 

professor in any school or college under the act of Mar. 2, 1895 (28 Stat., 826), providing 
in part as follows: 

"Provided, That any retired officer of the Navy or Marine Corps may, on his own 
application, be detailed to service as a teacher or professor in any school or college, 
but while so serving such officer shall be allowed no additional compensation." 

Concerning the provision which refers to "additional compensation," it was held by 
the Attorney General in construing a similar provision of section 1260, R. S., "that this 
does not refer to any additional compensation from the college, but from the United 
States." (20 Op. Atty. Gen., 689). 

The act of Feb. 26, 1901 (31 Stat., 810) and act of Apr. 21, 1904 (33 Stat., 225) were 
considered in this opinion. File 11112-649, J. A. G., Sept. 8, 1916. See also File 9736- 
22, Sec. Navy, Aug. 12, 1911; R. S. 1225. 

45. Same — " Held, That after June 6, 1912, retired officers of the Marine Corps can not be 

ordered to perform active duty under the law as it now stands." File 27231-47, 
J. A. G., May 31, 1912. But see Retired Officers, 1. 

46. Same— Act of August 22, 1912 (37 Stat., 329). See Retired Officers, 1. 

47. Same — Rank of retired marine officers— As affected by act June 3, 1916(39 Stat., 183.) 

Section 24 of this act does not apply to the Marine Corps " in so far as affects the rank 
of retired officers who have performed, or who may in the future perform, the required 
amount of active duty." File 26509-158:2, J. A. G., June 27, 1916. 

48. Same— Retired marine officers requested change of date in commissions. See Com- 

missions, 17, 18. 

49. Same — Pay of retired marine officer ordered to active dutv by the Secretary of the Navy 

under act of Aug. 22, 1912 (37 Stat., 329). See Pay, 91 ; Retired Officers, 1. 

50. Mayor ol a city in one of the States— Revised Statutes 1860 "does not prohibit a 

retired officer from accepting an office as mayor of a city in one of the States if duly 
elected thereto. In such case, however, a retired officer is, of course, subject to recall 
to naval duty if the exigencies of the service so require under the law." (File 5650-00, 
Sec. Naw, Sept. 21, 1900.) File 9736-18, J. A. G., June 25, 1910, p. 17. See also Act of 
June 7, 1900 (31 Stat., 703); File 27231-3, J. A. G., Nov. 1, 1909. 

51. Medical Corps — Employed on active duty — An officer of the Medical Corps of the 

Navy on the retired list may be employed on active duty under the act of August 22, 
1912 (37 Stat., 329). File 27231-65, J. A. G., June 30, 1915; C. M. O. 22, 1915, 10. 

52. National Guard— It has been decided by the Attorney General (29 Op. Atty. Gen. 

298) that an office in the National Guard of a State is not a civil office within the mean- 
ing of section 1222, R. S., relating to the Army, the Attorney General stating in part: 
"I have the honor, therefore, to advise you that, in my opinion, an officer on the 
active list of the Regular Army may accept the office to which you refer without 
violating the provisions of section 1222, R. S. Whether the acceptance by an officer 
of the Army of an office in the National Guard of a State would be inconsistent with the 
policy expressed in the Constitution and laws of the United States with respect to 
these two establishments, and whether there are not reasons other than those con- 
tained in section 1222, R. S., which would make it illegal or improper for an officer of 
the Army to subject himself to conflicting State jurisdiction, are matters upon which 
I express no opinion." File 8093-17, J. A. G., May 22, 1914. 

53. Naval Home — Forfeiture of retired pay when admitted to Naval Home. See Naval 

Home,1. 

54. Naval Militia of a State— A retired officer of the Navy can legally accept a commission 

as an officer in the National Guard, or Naval Militia, of a State, quot ing from letter of 
Acting Judge Advocate General to aid for personnel, Dec. 23, 1910, File 9736-19. The 
letter cited is, however, modified by the provision of the act of Aug. 22, 1912 (37 
Stat., 329) providing that naval officers may, with their const nt, be ordered to dutv. 
File 9736-29, J. A. G., Oct. 17, 1912. 

50756°— 17 35 



544 RETIRED OFFICERS. 

55. Same— -There is nothing in the law which would prohibit a retired naval officer from 

accepting a commission as commanding officer of the Naval Militia of a State. In 
case of acceptance, however, such officer will be subject to recall to naval duty if the 
exigencies of the service so require under the act of June 7, 1900 (31 Stat., 703), or "in time 
of war. (File 9738-19, J. A. G., Dec. 23, 1910.) The responsibility of such officer, 
commissioned as commanding officer of the Naval Militia of a State, would not be to 
the governor only, but within the purview of matters covered by the Articles for the 
Government of the Navy and other lawful rules, would be responsible even to the 
extent of punishment by naval courts-martial; also to the Secretary of the Navy. 
His accountability for Government property intrusted to him personally would not be 
different from that of other officers of the Navy similarly intrusted. (File 9736-19:1.) 

56. Same — There is no legal objection to a retired naval officer accepting a commission in 

the Naval Militia, the objection, if any, being one of policy only. Op., J. A. G., 
Feb. 17, 1916. See also File 26254-2073, Sec. Navy, Aug. 24, 1916. 

57. Same-" It is suggested that the commissioning of a warrant officer in the Navy with 

the rank of a lieutenant in the Naval Militia, to wear, it is assumed, the uniform of a 
lieutenant, in which position he may come in contact with officers of the Navy, his 
actual seniors in rank, would be open to objection upon grounds of policy, and would 
not conduce to the best interests of the service." File 4580-04, J. A. G., May 24, 1904, 
quoted in File 8093-17, J. A. G., May 22, 1914. 

58. Same — While there is no law expressly prohibiting an officer of the Regular Navy from 

holding an office in the Naval Militia, it is believed that the holding of such office 
contemporaneously with holding an office in the Regular Navy is incompatible 
with the best interests of both the Regular Navy and Naval Militia. File 8093-17, 
J. A. G., May 22, 1914. 

59. " Offices "—The Attorney General has held that an officer may hold two distinct offices 

and receive the pay of each. (14 J. A. G. 437.) But if two incompatible offices are held 
by the same person, it is otherwise. Also held that the Secretary of the Navy can 
appoint a retired officer to supervise the completion of certain tables of planets. File 
9736-18, J. A. G., June 25, 1910, p. 12. See also Retired Officers, 18, 66. 

60. Officers, retired— Tried by general court-martial. See Retired Officers, 33. 

61. Part of Navy— Naval officers, when placed on the retired list, are still part of the naval 

service and subject to the jurisdiction thereof. (See Murphy v. U. S., 38 Ct. Cls. 
511, 521.) See Retired Officers, 3-5, 33, 62, 74: File 27231-5, Sec. Navy, Dec. 9. 1909. 

62. Passed assistant surgeon, retired— Recommended for trial by general court- martial. 

File 26251-12462. 

63. Pay— Compensation of retired officers defined. See Retired Officers, 16. 

64. Same — Half pay when retired under the provisions of section R. S., 1447. 14 J. A. G. 

427; CM. 0.49, 1915,27. 

65. Same— Forfeiture of retired pay when admitted to Naval Home. See Naval Home, 1. 

66. Same— A retired officer of the Navy whose retired pay amounts to 82,500 per annum, 

is within the prohibition of the act of Julv 31, 1894, section 2 (28 Stat., 205). File 
9736-42, Sec. Navy, Mar. 7, 1914. See also Retired Officers, 18, 60. 

67. Pension. See Retired Officers, 16. 

68. Porto Rico— Health officer of Culebra, P. R. See Appointments, 35. 

69. Professors— Marine officers as. See Retired Officers, 44. 

Naval officers as. See File 21449-2: 21403. 

70. Rank of Marine officers— As affected by the act of June 3, 1916 (39 Stat., 183). See 

Retired Officers, 47. 

71. Rear admiral, retired— Tried by general court-martial. C. M. O. 41, 1915. 

72. Representatives, House of— Suggested: That it is inadvisable that a retired naval 

officer "go to Congress and retain his commission in the Navy," even though he 
declines all compensation or pay for his services in Congress, and will resign his seat 
in Congress whenever the Navy Department shall require his service. See Retired 
Officers, 18. 

73. Residence— Voting. See Voting, 12. 

74. Second lieutenant, Marine Corps, retired— Tried bv general court-martial. C. M. 

O. 23, 1896. 

75. Ship, merchant— There is no Federal statute which would prevent a retired officer of 

the Navy from accepting command of a merchant vessel provided he does not accept 
employment with any person or company furnishing naval supplies, etc., to the 
Government. File 9736-51, J. A. G., Nov. 19, 1914. 



RETIRED OFFICERS. 545 

A naval officer can not lawfully serve as master of a private steam vessel in the mer- 
chant service without having previously obtained the license required by section 
4438, R. S., although he may be eligible, by virtue of his commission, to take command 
of a steam vessel of the United States in the naval service. (15 Op. Atty . Gen. 60.) 

There is no objection to a retired naval officer accepting command of a merchant 
vessel. (Letter of Department of State, dated Nov. 24, 1914.) See File 9736-51. 

76. Signatures— The word "retired" may appropriately, and should be, appended to the 

signatures of officers on the retired list. " File 3575-03. 

77. State offices. File 27231-3. 

78. Superintendent of the State, War, and Navy Building— Eligibility of a retired 

naval officer. File 9510-5. 

79. Voting. See Voting. 

80. War— Censor duty in time of war. File 21393-185:560. 

81. War slate. File 3800-640:2; 28573-64. 

82. Warrant officers, retired— Tried by general court-martial. C. M. O. 34, 1916. 

RETIREMENT OF ENLISTED MEN. 

1. Fleet Naval Reserve. See Retirement of Enlisted Men, 3. 

2. Laws relating to — "That when an enlisted man or appointed petty officer has served 

as such thirty years in the United States Navy, either as an enlisted man or petty 
officer, or both, he shall, by making application to the President, be placed on the 
retired list hereby created, with the rank held by him at the date of retirement; and 
he shall thereafter receive seventy-rive per cent of the pay and allowances of the rank 
or rating upon which he was retired: Prodded, That if said enlisted man or appointed 
petty officer had active service in the Navy or in the Army or Marine Corps, either 
as volunteer or regular, during the Civil or Spanish-American War, such war service 
shall be computed as double time in computing the thirty years necessary to entitle 
him to be retired," etc. (Act Mar. 3, 1899, sec. 17; 30 Stat., 1008.) 

"That in computing the necessary thirty years' time for retirement of petty officers 
and enlisted men of the Navy, all service in the Army, Navy, or Marine Corps shall 
be credited." (Act June 22, 1906; 34 Stat., 451.) 

"That when an enlisted man shall have served thirty years either in the Army, 
Navy, or Marine Corps, or in all, he shall, upon making application to the President, 
be placed upon the retired list, with seventy-five per centum of the pay and allow- 
ances he may then be in receipt of, and that said allowances shall be as follows: * * *. 
Provided, That in computing the necessary thirty years' time all service in the Army, 
Navy, and Marine Corps shall be credited. 

"Sec. 2. That all acts and parts of acts, so far as they conflict with the provisions 
of this act, are hereby repealed." (Act Mar. 2., 1907; 34 Stat., 1217.) 
" * * * The period of time during which members of the naval reserve were 
actively employed with the Navy while enlisted in the naval reserve shall, for the 
purposes of retirement, be counted as active service in the Navy in the ease of those 
who reenlist in the Navy after service in the naval reserve." (Act of Mar. 3, 1915, 
38 Stat., 940.) 

"Men transferred to the Fleet Naval Reserve shall be governed by the laws and 
regulations for the government of the Navy and shall not be discharged from the Naval 
Reserve Force without their consent, except by sentence of court-martial. They may, 
upon their own request, upon completing thirty years', including naval and fleet 
naval reserve service, be placed on the retired list of the Navy with the pay they were 
then receiving plus the allowances to which enlisted men of the same rating are en- 
titled on retirement after thirty years' naval service." (Act Aug. 29, 1916.) File 
26254-2114 ? See. Navy, October, 1911. 

3. Service required— For the purpose of determining the thirty years' service necessary for 

retirement, all service should be counted, namely, Army, Navy, Marine Corps, 
active Naval Reserve service as referred to in the Act of March 3, 1915 (38 Stat.. 940), 
and Fleet Naval Reserve sen-ice, in the cases of men transferred to and ret ired from 
the Fleet Naval Reserve. File 8124-55, J. X. G., Oct. 17, 1916; C. M. O. 37. 1916. 

Members of the Fleet Naval Reserve upon retirement are entitled to have war 
service "computed as double time incomput ingthe thirl v years necessary to entitle" 
them to be retired in accordance with the act of March 3, '1899 (30 Stat..* 1006). File 
26254-2114, Sec. Navy, Oct. 16, 1916; C. M. O. 37, 1916. 
4. War service— See Retirement of Enlisted Men, 3. 



546 RETIREMENT OF OFFICERS. 

RETIREMENT OF OFFICERS. 

1. Acceptance. See Retirement of Officers, 18. 

2. Acting assistant surgeons— Can not, under the law, be retired for physical disability. 

File 27231-51, Sec. Navy, June 30, 1915, and July 14, 1915. 

3. Action— Of President. See Retirement of Officers, 42-47. 

4. Admiral of the Navy— After the victory of the present Admiral of the Navy over the 

Spanish Squadron at Manila, the following law was enacted (Mar. 2, 1899; 30 Stat., 
995 1045): 

"That the President is hereby authorized to appoint by selection and promotion an 
Admiral of the Navy, who shall not be placed upon the retired list except upon his 
own application." 

It can not be contended that the retention of this distinguished officer upon the 
active list, at his pleasure, is meant to be other than a reward. File 2623-114, J. A. G., 
Aug. 19, 1910, p. 10. 

5. Age— Retirements for age and for physical disability do not appear to be rights of re- 

tirement to which an officer is entitled, but are, on the contrary, compulsory and are 
provided to rid the service of the aged, the enfeebled, and the physically unfit. 15 
J. A. G.,15. See also Retirement of Officers, 21, 28. 

6. Same— There are many instances indicatory that Congress has never intended that 

retirement for age shall be considered as beneficial, but, on the contrary, as dis- 
tinctly adverse to the interests of the person so retired. 15 J. A. G., 9. See also 
Retirement of Officers, 21, 28. 

7. Age, retirement for age prior to Aug. 29, 1916— The court, in U. S.exrel. George 

L. Foreman v. George von L. Meyer, held in substance that an officer of the Navy 
must have had 45 years' sen-ice to entitle him to retirement for age. See File 5460-32: 
17, J. A. G., Feb. 7, 1912, which comments adversely upon the court's ruling above. 
An officer of the Navy does not have to have had 45 years' service before he can be 
retired for age, but may be retired for age after attaining the age of 62 years. The 
department's construction of the retirement laws, in consonance therewith, are 
therefore considered proper and contrary to the court's ruling above. File 5460-32:17, 
J. A. G., Feb. 17, 1912. 

8. Same— Laws relating to retirement for age and construction of same. See Retire- 

ment of Officers, 28. 

9. Age, retirement for age subsequent to Aug. 29, 1916— "Except as herein other- 

wise provided , hereafter the age for retirement of all officers of the Navy shall be sixty- 
four years instead of sixty-two years as now prescribed by law." (Act of Aug. 29, 
1916; 39 Stat., 579.) 

The age limit for retirement of officers of trie Navy, provided in the act of August 
29, 1916 (39Stat., 579), will apply to retired officers who may be restored to the active 
list by acts of Congress. File 286X72, J. A. G., Sept. 9, 1916. 

10. Army — Abstract of retirement laws. See Retirement of Officers, -29. 

11. Benefit— Congress has never intended that retirement for age shall be considered as 

beneficial. See Retirement of Officers, 6. 

12. Causes of— Twelve officers, at least, who were found physically qualified for promo- 

tion, but unqualified professionally, mentally, or morally, have been placed upon the 
retired list in accordance with the act of April 21, 1864, sec. 1 (13 Stat., 53). At least 
three officers who were examined and found physically disqualified were retired 
under section 4 of above act (13 Stat., 53). 14 J. A. G., 422. 

13. Chief carpenter— With Civil War service. See Civil War Service, 6. 

14. Chiefs of bureaus— Subsequent retirement of officers who have served as chiefs of 

bureaus. File 27231-66:2, J. A. G., Oct. 21, 1915. 

15. Chiefs of Staff Corps. See Chiefs of Staff Corps, 1. 

16. Civil War service — Higher grade for Civil War service. See Civil War Service, 5, 6. 

17. Clerks to assistant paymasters, Marine Corps. See Paymasters' Clerks, 

Marine Corps, 5, 6. 

18. Communication of acceptance — While in the case of an officer who resigns his 

commission it is necessary to communicate to him the acceptance of such resignation, 
yet the same conditions do not exist where a change of status is involved, as the 
transfer of an officer from the active to the retired list, and the facts are only com- 
municated to the officer concerned to inform him of the fact that he has been retired, 
on and from a certain date. File 26543, J. A. G., Aug. 28, 1911, p. 2. 

19. Congress— Can not change finding of a retiring board. See Retirement of Offi- 

cers, 26. 



RETIREMENT OF OFFICERS. 547 

20. Death gratuity— An officer of the Navy was selected for retirement under the act of 

March 3, 1899, sec. 9 (30 Stat., 1004, 1006); findings of board approved by the President 
July 3, 1911; the officer died July 4, 1911. Held, That since this officer was no longer 
on the active list but on the retired list, the provisions of law for the payment of a death 
gratuity were not applicable. File 26543-62:1, J. A. G., Aug. 28, 1911. 

21. Disadvantage— Retirement is looked upon as disadvantageous by officers. File 

26253-114, J. A. G., Aug. 19, 1910, p. 11. See also Retirement of Officers, 5, 6. 

22. "Discharged" — Defined and compared with "wholly retired" and "dismissed." See 

Discharge, 11. 

23. "Dismissed"— Defined and compared with "wholly retired" and "discharged." See 

Discharge, 11. 

24. Employment — In civil capacity during Philippine campaign— Since employment in 

connection with the Marine Corps in the Philippines during the Philippine Campaign 
in a civilian capacity did not operate to make such employee an officer or enlisted 
man of said corps (File 19245-43:1, Sec. Navy, Mar. 8, 1912) the department held that 
a pay clerk, having been so employed, should not be considered as having been in the 
military service in connection with questions of precedence or retirement for length 
of service. File 19245-43:3, Sec. Navy, July 6, 1915; C. M. O. 27, 1915, 10. 

25. Feeble— Retirement of. See See Retirement of Officers, 5. 

26. Finding— Of a retiring board can not be changed by act of Congress. File 26255-83:4, 

J. A. G., Aug. 4, 1911, p. 2. 

27. Involuntary retirement— Laws relating to. See Retirement of Officers, 28, 29. 

28. Laws relating to retirement of officers of the Navy — The act of December 21, 1861, 

provided that officers of the Navy should be retired from active service for two sepa- 
rate reasons, namely: (1) Whose name shall have been borne on the Navy Register 
for 45 years; (2) who shall be of the age of 62 years. The Navy Department has, for 
nearly 40 years, construed the law, now embodied as section 1444, R. S., as only 
requiring the fulfilment of either requirement. The construction of those laws by 
the department should be controlling. File 26260-874, J. A. G., June 3, 1910, p. 5. 

29. Same — Abstract of retirement laws showing differences between the laws relating to 

retirement of officers of the Army, Navy, and Marine Corps. File 27231-10, Feb. 9, 
1910. 

30. Same— In general under section 1456, R. S., and the act of August 5, 1882 (22 Stat., 284), 

misconduct is not ground for retirement. File 26260-874, J. A. G., June 3, 1910, p. 5. 

31. Same— A commander who has failed to qualify for promotion can not be retained at 

the head of his list until he does qualify, by virtue of section 1458, R. S. In such a 
case, the provisions of sections 1447 and 1496, R. S., would apply and the officer would 
receive one-half pay upon retirement. File 28260-874, J. A. G., June 3, 1910, pp. 5-8. 
See also File 5460-32:17, J. A. G., Feb. 7, 1912. 

32. Leave of absence — Requested prior to retirement. See Leave of Absence, 10. 

33. Legal right— To be examined for promotion when physically incapacitated for duty — 

An officer has not a legal right to be ordered before a board of medical examiners for 
promotion instead of being ordered before a retiring board, where he is due for pro- 
motion, but the records of the department in his case are such as to establish prima 
faciehis physicalincapacity for active duty. Thisapplies, for example, (a) to an officer 
who has already appeared before a retiring board upon which action has been sus- 
pended or which has not otherwise been finally disposed of; (b) to an officer who is 
on sick leave or on the sick list when his promotion becomes due, and has been in 
that status for a prolonged period prior thereto; (c) and to an officer who has received 
permanent physical injuries of a disabling character before his promotion comes due. 
File 27231-63, J. A. G., May 27, 1915; C. M. O. 22, 1915, 10. 

34. Line of duty. See Surgical Operations. 

35. Marine officers — "The commissioned officers of the Marine Corps shall be retired in 

like cases, in the same manner, and with the same relative conditions, in all respects, 
as are provided for officers of the Armv, except as is otherwise provided in the next 
section." (R. S., 1622.) File 26280-61. 

From the very language of section 1622, R. S., it would occur that it was intended 
to apply only to the retirement of marine officers, and not to their status after retire- 
ment. This is what was held by the Court of Claims in Jonas v. U. S. (Ct. Cls.), the 
court stating: 

"Section 1622 simply provides for the conditions precedent to the retirement of an 
officer of the Marine Corps, but in no way changes the jurisdiction to which he is 
subject or the conditions under which he may again be placed upon active duty.'" 



548 RETIREMENT OF OFFICERS. 

"The meaning of the provision, 'with the same relative conditions,' is obscure. 
It might be regarded as including eligibility for assignment to active duty. But I 
think this would be extending its meaning beyond what was intended. I am of 
opinion that it will be given its appropriate meaning by co nfinin g it to conditions 
pertaining to retirement alone." (11 Comp. Dec, 8.) 

"The language of section lG22is broad and sweeping, and as it is the only provision 
upon the subject of retirement it must be held to mean just what it says— that 'the 
commissioned officers of the Marine Corps shall be retired in like cases in the same 
manner, and with the same relative conditions in all respects, as are provided for 
officers of the Army.' In other words, officers of the Marine Corps, in the matter of 
retirement, were placed by that section upon exactly the same footing as officers of 
the Army." (25 Op. Atty. Gen., 262.) 

36. Same — A marine officer was examined for promotion to the next higher grade and 

failed physically, whereupon the marine examining board resolved itself into a re- 
tiring board; the officer was found incapacitated for active sendee, the result of an 
incident of the service. The actual retirement should not take place before the 
occurrence of the vacancy to which the officer would be entitled if qualified (he having 
been examined prior to the existence of the vacancy). Action was withheld until a 
vacancy occurred, when the record was transmitted to the President with the recom- 
mendation that the finding be approved and the officer retired in the next higher 
grade, under the acts of October 1, 1890 (26 Stat., 562), and July 28, 1892 (27 Stat., 321). 
File 26260-1658, May 6, 1912. 

37. Naval officers— In general. File 26260-1294, J. A. G., June 10, 1911. 

38. Paymasters' clerks. File 26253-364:1, J. A. G., Mar. 23, 1915. 

39. Paymasters' clerks, Marine Corps. See Paymasters' Clerks, MarineCorps, 5, 6. 

40. Physical disability—" Hereafter, if any officer of the United States Navy shall fail 

in his physical examination for promotion and be found incapacitated for service by 
reason of physical disability contracted in the line of duty, he shall be retired with 
the rank to which his seniority entitled him to be promoted." (Act Mar. 4, 1911; 36 
Stat., 1267.) 

The purpose of the enactment of March 4, 1911, above quoted, as shown by the 
Secretary of the Navy's annual report for the fiscal year 1909 (p. 34), and by letters 
written by this department to Congress urging the legislation in question (File 26509- 
1/2-40 and 40:1; 26255-195:2), was to reward officers who had served the full period in 
their existing grade and who, upon becoming due for promotion by seniority, were 
found upon examination therefor to be physically disqualified for such promotion to 
which they were regarded as being in equity and justice entitled by reason of efficient 
service rendered by them on the active list. In other words, the law was intended to 
cover the cases of officers who had served throughout their existing grade on the 
activelist but who, upon examination for promotion, were discovered to be physically 
disqualified for the duties of a higher grade. (.See File 26253-386:1, Jan. 27, 1915.) 
File 27231-63, J. A. G., May 27, 1915. See also Promotion, 157; Retirement of 
Officers, 50. 

41. "Plucking Board"— Held, That the vacancies caused by retirements in cases where 

the provision in the act of March 4, 1911 (36 Stat., 1267), applies, should be counted in 
determining the annual "average vacancies enumerated in section 8" of the Navy 
personnel act. (Act of March 3, 1899, 30 Stat. 1006.) 

The provisions of the act of March 4, 1911 (36 Stat., 1267), were intended to be identi- 
cal with the Army law of October 1, 1890 (26 Stat., 562), and to have the identical 
operation thereof. 

The vacancies created by the provision of the act of March 4, 1911 (36 Stat., 1267), 
are vacancies in the grades held at the time of retirement from which promotion 
would otherwise be made. File 26297-9, J. A. G., Feb. 8, 1912. 

The so-called Plucking Board was the act of March 3, 1899, section 9, (30 Stat. 1006) 
as amended by the act of August 22, 1912 (37 Stat . , 328). It was repealed bv the act of 
March 3, 1915 (38 Stat., 938). File 26251-169, p. 7. See also Promotion, 123. 

"The act of March 3, 1899, section 9 (30 Stat., 1004), known as The Navy Personnel 
Act, provided for a board of rear admirals whose duty it was to select officers for re- 
tirement, in order to create vacancies. It was provided that the Secretary of the 
Navy 'shall place at its disposal the sendee and medical records on file in the Navy 
Department of all the officers in the grades of captain, commander, lieutenant com- 
mander, and lieutenant; ' that ' the board shall then select, as soon as practicable after 
the first day of July a sufficient number of officers from the before-mentioned grades, 
as constituted on the thirtieth day of June of that year, to cause the average vacancies 



RETIREMENT OF OFFICERS. 549 

enumerated in section eight of this Act'; and that 'each member of said board shall 
swear, or affirm, that he will without prejudice or partiality, and having in view 
solely the special fitness of officers and the efficiency of the naval service, perform the 
duties imposed uponhim by this Act." File 26251-169; J. A. G., Nov. 28, 1916, pp. 7-8. 

42. President— " Whenever, in the judgment of the President, an officer is incapacitated 

to perform the duties of his office, the President, at his discretion, may direct the 
Secretary of the Navy to refer the case of such officer" to a retiring board. File 
27231-63, J. A. G., May 27, 1915. 

43. Same— Action of President in approving the finding of a retiring board is a judicial 

act "equivalent to the judgment of an appropriate tribunal." (Burchard v. U. S., 
125 U. S., 176). File 26256-10/A, J. A. G., Jan. 25, 1909, p. 4. 

44. Same — After approval by the President of the report of a retiring board the case can 

not be reopened. Where the connection of an officer with the service has been 
severed by his resignation, discharge, or dismissal, he can be reinstated only by a new 
appointment made by and with the advice of the Senate. The mere revocation 
of the acceptance of his resignation or of the order terminating his connection with 
the service can not have this effect. (20 Enc. Law, 636, etc.) File 5252-72, J. A. G. , 
Sept. 27, 1915. 

45. Same— The President may approve, disapprove, or issue orders in the case. File 

26253-275, Sec. Navy, Apr. 4, 1913. 

46. Same — Subsequent modification by the President of his former action. File 26253-398, 

April, 1915. See also File 26260-1392:29, February, 1912. 

47. Promotion— Officer due for promotion but incapacitated for duty. See Retirement 

of Officers, 33. 

48. Right, legal— An officer has no legal right to be ordered before a board of medical ex- 

aminers for promotion instead of being ordered before a retiring board. See Boards 
of Medical Examiners, 6; Retirement of Officers, 33. 

49. Staff Corps— Retirement of chiefs of staff corps. See Chiefs of Staff Corps. 

50. Statute— Act of March 4, 1911— The Naval Appropriation act of March 4, 1911 (36 Stat., 

1267), contains the following: 

"Hereafter, if any officer of the United States Navy shall fail in his physical exami- 
nation for promotion and be found incapacitated for service by reason of physical 
disability contracted in the line of duty, he shall be retired with the rank to which 
his seniority entitled him to be promoted." 

This enactment was intended to cover the cases of officers who had served through 
out their existing grade on the active list, but who, upon examination for promotion 
were discovered to be physically disqualified for the duties of a higher grade. It does 
not apply to thecase of an officer who, because of physical disability, never rendered 
any real service in his existing grade, and whose physical incapacity for promotion 
was well known and established by the official records even prior to his being com- 
missioned in his present grade. 

Accordingly, Held that a midshipman who was promoted to ensign while physically 
incapacitated for duty, but who was nevertheless retained on the active list notwith- 
standing his continued incapacity and the adverse report of a retiring board, until he 
became due for promotion to lieutenant (junior grade), should be ordered before 
another retiring board, and if found incapacitated for active duty due to an incident 
of the service should be retired with his present rank ; and that the law neither requires 
nor contemplates that he be examined for promotion with a view to his retirement 
with the rank of lieutenant (juniorgrade). File 26253-386:1, Sec. Navy, Jan. 27, 1915; 
Seealso file 26253-334:2; C„ M. O. 6, 1915,16. See also Retirement of Officers, 40. 

51. Transfer— From one status to another on the retired list. See File 26254-236. 

52. Voluntary— Abstract of laws relating to. 14 J. A. G., 287, Feb. 9, 1910. 

53. Warrant officers. See File 26253-114, J. A. G., Aug. 19, 1910, p. 2. 

54. "Wholly retired "—Defined and compared with "Discharged" and "Dismissed." 

See Discharge, 11. 

REVEALING VOTE, OPINION, OR SENTENCE. See Oaths, 47. 

REVENUE-CUTTER SERVICE. See also Coast Guard. 

1. Medals of Honor. See Medals of Honor, 3. 

2. Transfer of naval vessel— Authority of Congress is necessary for transfer of naval 

vessel to the Revenue-Cutter Service. File 3160-54, May 4, 1907. 



550 REVIEWING AUTHORITY. 

REVIEWING AUTHORITY. See also Convening Authority; Revising Power; 
Secretary of the Navy. 

1. Abuse of authority. See Criticism of Courts-martial, 35. 

2. Action of— Importance of. See Convening Authority, 2. 

3. Approval— Necessity of. See Convening Authority, 2. 

4. Changing action after promulgation. See Convening Authority, 6. 

5. Clemency— The power of exercising clemency is vested in the reviewing authority, 

not in courts-martial or members. See Adequate Sentences, 3-6; Clemency, 13; 
COURT;, 17. 

6. Convening authority— The convening authority of a general court-martial is the 

reviewing authority, except where the sentence is death or the dismissal of a com- 
missioned or warrant officer. (A. G. N., 53.) See Criticism of Courts-martial, 35. 

7. Definition— In general, the senior officer present is the incumbent of that office, and 

not the particular individual who may happen at some particular time to occupy 
the position. File 26287-1121, J. A. G., Feb. 24, 1912. 

8. Disapproval— Effect of. See Convening Authority, 21; Criticism of Courts- 

martial, 35; Reviewing Authority, 20. 

9. Evidence — As to the intervention of the reviewing authority in such matters [unob- 

jected-to evidence], such action is believed to be unnecessary, even if it be not im- 
proper or irregular. While there is no such thing, of course, as a bill of exceptions in 
a court-martial proceeding, yet if objections are made during the course of the trial 
they should be considered by the reviewing authority. But if no objection is made, 
then in accordance with ordinary procedure there is nothing in question for the re- 
viewing authority to decide as to the admissibility of evidence. A possible exception 
to this, however, in view of the greater latitude allowed in all court-martial procedure, 
would be a case where the trial court had ignored the objectionable character of certain 
evidence on the ground of public policy. 

The reviewing authority should not, therefore, have concerned himself with the 
question of the admissibility of the evidence in question; in other words, he might 
properly have approved the proceedings, because, as the particular evidence was not 
objected to upon the trial, and as it did not contravene any rule of public policy, he 
need not have concerned himself with the matter. C. M. O. 31, 1911. See also 
Evidence, 82-84. 

10. Exemptions in sentences— Exemption of $20 to be paid when discharged is not 

subject to action of convening or reviewing authority. See Exemptions in Sen- 
tences, 1, 2, 6, 7. 

11. Just — The reviewing authority must be convinced of the justness of the finding and 

sentence before approving. C. M. O. 6, 1909, 3. 

12. Mitigation or remission— Of sentence after final action on. See Convening Au- 

thority, 62; Secretary of the Navy, 56. 

13. Numbers, loss of— Action on general court-martial, where it is desired to place officer 

at foot of list and there lose numbers. See Numbers, Loss of, 10. 

14. Objections to evidence. See Evidence, 82, 83. 

15. Plea in bar of trial— Reviewing authority may not compel a court to reverse its judg- 

ment upon a plea in bar of trial. See Reviewing Authority, 16; Naval Militia, 
39 (p. 407). 

16. Powers of— It is not in the power of the revising authority to compel a court to reverse 

its judgment upon a plea in bar of trial, or to change its finding or sentence, when, 
upon being reconvened by him, it has declined to modify the same, nor either directly 
or indirectly to enlarge the measure of punishment imposed by sentence of a court- 
martial. (R-846.) The members of a duly constituted and organized court-martial 
can not be dictated to or interfered with in their proceedings by the highest military 
authority. (R-722.) C M. O. 4, 1914, 11, overruling C. M. 0. 16, 1911, 3, containing 
a statementfrom Winthrop, p. 378, that where a court holds a plea in bar valid the 
convening authority may "order it positively to try the charges." See also Re- 
vision, 24. 

17. Record— The reviewing authority has only the record from which to form an opinion 

as to the merits of the case. C. M. O. 6, 1909, 3. See also Court, 16. 20. 

18. Remission or mitigation — Of sentence after final action on. See Convening 

Authority, 62; Secretary of the Navy, 56. 

19. Sentences— General courts-martial must not lose sight of the fact that their adjudged 

sentences are inoperative and of no effect until approved as provided by law. C. M. O . 
6, 1909, 3. See also Convening Authority, 2. 

Effect of disapproval by reviewing authority. See Convening Authority, 21; 
Criticism of Courts-Martial, 35; Reviewing Authority, 20. 



REVIEWING AUTHORITY. 551 

20. Sentence approved, proceedings disapproved— In a summary court-martial case 

where the convening authority approved the proceedings and sentence and the re- 
viewing authority (senior officer present) disapproved the proceedings but approved 
the sentence, the department stated in part: 

"No sentence of a summary court-martial shall be carried into execution until the 
proceedings and sentence have been approved by the officer ordering the court and by 
the commander in chief, or, in his absence, by the senior officer present." (A. G. N. 
32.) [See also Summary Courts-Martial, 38.] 

Where there is a sentence the reviewing authority may and often does exercise the 
authority of disapproval as to some portion or portions of the proceedings not essential 
to support the sentence. Thus he may, in his review, disapprove a ruling of the 
court upon an objection to evidence, or a ruling upon some interlocutory matter as a 
motion for a continuance, which, though erroneous, does not impugn the final judg- 
ment; or he may disapprove some statement or omission in the record, which, not 
being at variance with a statutory requirement, does not constitute a fatal defect. 
But this form of unfavorable comment is entirely consistent with a final approval 
of the sentence or of a punishment; a disapproval indeed of certain of the proceedings 
is often accompanied by an approval of the sentence or of a part of it. (See Winthrop, 
p. 692.) 

The remarks of the reviewing authority (senior officer present) in this case, however, 
disapproved the entire proceedings, leaving nothing to support the sentence. Cer- 
tainly if the entire proceedings were devitalized by the disapproval, they retained no 
force to sustain the finding and the sentence predicated thereon. No authority is 
found in Forms op Procedure, 1910, nor in the preceding volume (Lauchheimer), 
authorizing this form of action by a reviewing authority. 

It may be true that it was intended merely to comment adversely upon the particular 
fact that the confession of the accused was admitted. If this were true, and it may 
be regarded in that light, perhaps, then the sentence may, of course, be sustained. 
The reviewing authority says in his remarks, after disapproving " the proceedings in 
the foregoing case," etc., that the sentence is approved because "there seems to be 
sufficient evidence exclusive of that given by Lieut. * * *, United States Navy, 
to establish the guilt of the accused, as found by the court." 

It is believed that a careful reading of the foregoing indicates that the intention 
of the reviewing authority was merely to disapprove the proceedings as to the one 
particular matter, but that his language was rather inartificial for that purpose, and, 
unless read in connection with the latter part of the remarks, might well be regarded 
as a complete disapproval of the whole proceedings. It is believed that this was not 
the intention, however, and that the whole indorsement, read altogether, may 
properly be held to mean that only that single act of the court is disapproved. This 
is not an unreasonable construction, and as the guilt of the accused appears to have 
been shown, there would be no miscarriage of justice in reading the remarks in this 
sense. C. M. O. 31, 1911, 3-4. See also Convening Authority, 21. 

21. Unobjected- to evidence. See Evidence, 82-84; Reviewing Authority, 9. 

22. Witnesses — "The court, having personally heard the witnesses, is, ordinarily more 

competent to arrive at the facts from the evidence presented than is a reviewing au- 
thority, even though said reviewing authority may by long experience be more ex- 
pert in weighing evidence than is the court." File 26251-12159, Sec. Navy, Oct. 30, 
1916. See also Evidence, 129. 

REVISED STATUTES. 

1. Nature of— The "Revised Statutes" is one act of Congress (act June 22, 1874) entitled 

"An act to revise and consolidate the statutes of the United States in force on the 
first day of December, anno Domini one thousand eight hundred and seventy-three." 

2. Object of— "The main object of the revision was to incorporate all the existing statutes 

in a single volume, that a person desiring to know the written law upon any subject 
might learn it by an examination of that volume, without the necessity of referring 
to prior statutes upon the subject. * * * If it be but another volume added to 
the prior Statutes at Large, the main object of the revision is lost, and no one can 
be certain of the law without an examination of all previous statutes upon the same 
subject." (Hamilton v. Rathbone, 175 U. S. 421. See also Murdock v. Memphis, 
20 Wall. 617.) File 26280-61, Sec. Navy, July 10, 1916. 

REVISING AUTHORITY. See Revising Power. 



552 revision. 

REVISING POWER. See also Convening Authority; Reviewing Authority; Sec- 
retary of the Navy. 

1. Clemency— If court adjudges inadequate sentence, the revising authority will not 

grant clemency. See Clemency, 54. 

2. Same— Clemency is to be exercised by the "revising power," not by the court. See 

Adequate Sentences, 5. 

3. Recommendations — To the clemency of. See Clemency. 

4. Record of proceedings — Minutes of opinion and decision in cases of objections are for 

information of revising authority. C. M. O. 49, 1915, 11. 

REVISION. 

1. Absence of accused— A general court-martial properly ruled that an accused should 

not be present during the proceeding in revision while the letter returning the case 
for revision was being read . O therwise the accused would be informed of the findings 
of the court, etc. File 26251-12159 (Record of proceeding, first revision, p. 2.). 

2. Acquittal— Adhering to. See Criticism of Courts-Martial, 19, 20, 22. 

3. Action of convening authority. See Revision, 9, 10. 

4. Authority— It is laid down as a thing not open to controversy in all the books on mili- 

tary law, that the superior authority may order a court-martial to reassemble to 
revise its proceedings and its sentence. (6 Op. Atty. Gen., 203.) 

Whether a general court-martial record shall be returned to the general court-martial 
for revision by the department (convening authority) is a question of policy which 
addresses itself to the department alone. C. M. O. 4, 1913. 

5. Boards of inquest. See Boards of Inquest, 7. 

6. Boards of investigation. See Boards of Investigation, 16. 

7. Clemency — Court adhering to its recommendation to clemency in revision. See 

Findings. 

8. Clerical errors— Correction of. See Accused, 8; Clerical Errors, 3; Record of 

Proceedings, 26. 

9. Convening authority— Upon the receipt of the record of a court-martial the reviewing 

officer shall proceed at once to scrutinize the same, in order to return it for revision, if 
such course be necessary, before the dissolution of the court. (R-136.) 

10. Same— The convening authority (fleet) " approved the proceedings in revision in this 

case, but disapproved the finding and sentence in revision." By the wording of the 
action of the convening authority he approved only the proceedings in revision, and 
disapproved the finding and sentence in revision. The words " in revision" should 
be omitted, thus making the action cover the whole of the proceedings, both original 
and in revision. The appropriate action in this case would read: " The proceedings of 
the general court-martial in the foregoing case of Lieut, (junior grade) * * *, United 
States Navy, are approved; the findings and sentence are disapproved for the follow- 
ing reasons: * * *. He will be released from arrest and restored to duty." (Forms 
of Procedure, 1910, p. 52; C. M. O. 23, 1910, p. 3.) C. M. O. 4, 1916, 3, 5. 

11. Courts of inquiry. See Courts of Inquiry, 47. 

12. Criticism of court-martial— Where the subject of the unfavorable criticism is an 

error capable of being corrected by the return of the proceedings to the court, it is 
just that this course should first be pursued. See Criticism of Courts-martial, 35. 

13. Dissolution of court— No revision after dissolution. See Court, 69-71, 144. 

14. Evidence— Illegal to introduce new evidence in revision. C. M. O. 23, 1904, 1; 2, 1905, 3; 

22, 1905; 23, 1905; 54, 1905; 142, 1900; 61, 1894, 2: 37, 1909, 4; 15, 1910, 12; 26, 1910, 7; 5, 1911, 
5; 8, 1911. 8; 10, 1912, 5; 5, 1914, 5. 

15. Same— Article R-837, United States Navy Regulations, 1913, provides as follows: 

"(1) When a court is ordered to revise its proceedings, new testimony shall not be 
brought forward in any shape. 

" (2) The revision shall be strictly confined to a reconsideration of the matter already 
recorded in the proceedings, no part of which is to be amended, altered, or annulled in 
any way." 

The Forms of Procedure for Courts and Boards in the Navy and Marine Corps 
provide as follows: 

"No new testimony admitted: When a court is ordered to revise its proceedings 
no new testimony shall be brought forward in any shape" (p. 175). 

The decisions in the Army on this subject are stated as follows (Dig. Armv, 
1912, p. 523, par. 5): 

"It is now settled in our law that a court-martial is not empowered, at this pro- 
ceeding (that is, proceeding in revision), to take or receive testimonv." C. M. O. 5, 
1914, 5. 



REVISION, 553 

16. Same — Summary court-martial proceedings disapproved because additional evidence 

received on revision. File 27201-199 and 201. 

17. Findings — If court adheres to former findings (or findings and acquittal) in revision, 

such statement should be in handwriting of judge advocate. C. M. O. 29, 1914, 5-6. 

18. Handwriting— Findings and sentence in revision should be in handwriting of judge 

advocate or recorder even if adhered to. See Findings, 48-50; Sentences, 52. 

19. Judge advocate — It is not necessary that the same judge advocate officiate on the 

revision of a case as took part in the original proceedings. If a new officer be detailed 
in that capacity, however, the orders of the convening authority, modifying the pre- 
cept in that respect, shall be read and a copy appended to the record in revision. 
(R-838 (2).) 

20. Members— Constitution of court in revision. See Revision, 22. 

21. New judge advocate. See Revision, 19. 

22. New members — An officer who was not a member of the general court-martial which 

tried the accused, but subsequently was appointed to such, renders the proceedings 
in revision illegal, if he sits upon the court during the proceedings in revision. C. M. O. 
47, 1910, 10. 

23. New trial— A revision is not a new trial. A new trial is a rehearing of the case. The 

court-martial in revision does not rehear the case; it only considers the record for 
the purpose of correcting or modifying any conclusions thereon. A true analogy from 
the civil courts is the case of a jury sent out to reconsider its verdict. (6 Op. Atty. 
Gen., 205.) 

24. Plea in bar— "While many precedents may be found for the return of proceedings 

to a court-martial by the revising authority, with a presentment of his reasons for 
differing from the court in sustaining the plea in bar, I can find no precedent case in 
which, under similar circumstances, the convening authority ordered the court to 
proceed with the trial, nor do I know of any provision of law or any regulation con- 
ferring such authority." The English practice agrees with the above: "If the court 
allow the plea, the convening officer cannot overrule the finding, inasmuch as to do 
so would be to compel the court to try the prisoner, and thus render its members liable 
to possible action for damages after the expression of their own opinion that they had 
no iurisdiction. But the convening officer may convene another court." (Manual 
of Military Law, War Office, 1887, p. 623.) C. M. O. 9, 1893, 11, 12. See also Re- 
viewing Authority, 15, 16. 

25. Previous convictions — May, in certain cases, be introduced in revision. See Previous 

Convictions, 19. 
2(3. Quorum. See Revision, 30. 

27. Reasons asked lor— Where the court rendered a full and honorable acquittal in a case 

where it was believed that the evidence clearly warranted a conviction, the depart- 
ment in returning the record for revision stated among other things: It is directed that 
"should the particular feature which has governed the court in its previous finding 
not be adequately covered in the above and should the court therefore still adhere 
to its previous finding * * * it spread upon the record foe the information of the 
department the reasons complete and in detail which governed it in arriving at its 
finding." File 26251-12159, Sec. Navy, Oct. 30, 1916, p. G. 

28. Reasons for adhering— "The department in returning the record of the proceedings 

to the court pointed out the irregularity of procedure, incompetency of evidence, and 
illegal conclusion reached, and notwithstanding this the court, after reconvening, 
adhered to its original finding without even attempting to set forth its reasons for so 
doing or show any justification for its course, which action the undersisrned is wholly 
unable to understand." C. M. O. 37, 1909, 6. 

29. Reconvening order— Should be prefixed. See Revision, 30. 

30. Record ol proceedings— If the court be reconvened to amend or otherwise remedy a 

defect or omission in the record, which may be done if the facts warrant, the recon- 
vening order must be prefixed to the record, which shall also show that at least five 
members of the court, the judge advocate, and the accused were present . and that the 
amendment was then made to conform to and express the truth in the case. The 
five members above mentioned must be among those who authenticated the original 
sentence. (R-838(l).) See C. M. O. 49. 1915, 12. 

31. Same— Original record not to be amended, altered, or annulled. C. M. O. 47, 1910, 5: 

17, 1910, 5; 5, 1911, 5; 5, 1912, 14; 5, 1914, 5. See also Corrections, 4. 

32. Same — Record of proceedings in revision shoidd bo prefixed, not appended, to the 

record of which it is a part. 0. M. O. 23, 1910, 4: 29, 1914, 3. 



554 REVISION. 

33. Sentence — When the court, in revision, adjudges another sentence, it must be stated 

in the record that the court revokes the former sentence, as otherwise the accused will 
stand sentenced twice for one offense, which is illegal. C . M. . 42, 1894, 3; 37, 1909, 7. 

34. Same — Where there are two former sentences, in order to prevent ambiguity, the 

phraseology should be altered so as to indicate which sentence the court adheres to; 
as, for example, " the court does respectfully adhere to its former sentence, as awarded 
upon the first revision in the foregoing case." CM. O. 42, 1909, 12. 

35. Sentence, adhering to— On revision the statement that "the court does respectfully 

adhere to its former sentence " is equivalent to a rewriting of the sentence, and should 
be in the handwriting of the judge advocate. C. M. O. 42, 1909, 11; 23, 1910, 3; 30, 1910, 
8; 29, 1914, 6; 42, 1914, 4; 8, 1915, 3; 6, 1916, 2. 

36. Same — " It is noted in the record of proceedings in revision of the general court-martial 

in the foregoing case of Pay Clerk * * *, United States Navy, that the record of 
the action of the court in adhering to its former sentence is typewritten. This should 
have been in the handwriting of the judge advocate. " (Forms of Procedure, 1910, 
p. 51, changes dated July 10, 1914.) [Seealso Index-Digest, 1914, pp. 34, 38.] C. M. O. 
6, 1916, 2. See also Handwriting, 9. 

37. Summary court-martial— Record in revision should be prefixed, not appended. 

See Summary Courts-Martial, 67, 81. 

REVOCATION. 

1. Appointment— Of paymaster's clerk. See C. M. O. 15, 1902. 

2. Same— Of officers. See Commissions, 20. 

3. China campaign badge. See China Campaign Badges. 

4. Commissions — Impossible, if signed and sealed. See Commissions, 22, 32, 33. 

5. Discharge. See Discharge, 23, 24, 25. 

6. Discharge obtained by fraud. See Discharge Obtained by Fraud. 

7. Dishonorable discharge — Where an enlisted man has been sentenced by general 

court-martial to dishonorable discharge, and such sentence has been approved and 
executed, it can not afterwards be revoked and an honorable discharge substituted. 
File 26516-9, J. A. G., May 28, 1909. See also Discharge, 24; Dishonorable Dis- 
charge, 20. 

8. Dismissal. See Dismissal, 31; Midshipmen, 75. 

9. Philippine Campaign Badge. See Philippine Campaign Badges, 3. 

10. Post traders. See Post Traders, 1. 

11. Resignations. See Resignations, 21, 22. 

12. Retirements. See Resignations, 22. 

13. Secretary of the Navy— Revocation of action in courts-martial. See Setting 

Aside, 8. 

14. Sentences. See Sentences, 93, 94. 

REWARDS. 

1. Actual delivery— No reward is paid bv the Navy for the arrest of a deserter but only 

for his actual delivery. File 5621-9, Sec. Navy, Sept. 10, 1907. 

2. Administrator— It is proper and legal that a reward for a deserter returned to the 

naval authorities by a sheriff be paid to the administrator of the estate of said sheriff. 
Care should be taken, however, to insure the payment of the reward to a person duly 
appointed as administrator. File 26516-177, J. A. G., June 26, 1915; C. M. O. 22, 1915, 
10. 

3. Deputy United States marshal— Reward may be paid to. File 26516-103:1. 

4. Detectives. See Rewards, 11, 12. 

5. Excluding certain persons or firms from offer— If Bureau of Navigation desires to 

bar any person or firm from delivering deserters and receiving rewards therefor, this 
may be accomplished by inserting a clause in the offer of reward to the effect that such 
reward will not be paid to any individual or firm which has been denied the right to 
arrest deserters by the Navy Department. File 26516-92:1, J. A. G., Sept. 27, 1912. 
See ateo File 26516-216. 

6. Expiration of offer. See Rewards, 8. 

7. General public. See Rewards, 9, 10. 

8. Lapse of offer— Where the offer of a reward for the apprehension and delivery of a 

deserter by a commanding officer expires before a civil officer delivers the de'serter 
to a recruiting officer of the Navy, who tells the civil officer he is entitled to the reward 
of S50 for the delivery, the reward can not be paid , for the offer was not in effect when 
the delivery was made, the recruiting officer was not the "commanding officer" 



REWARDS. 555 

within the meaning of R-3635, so that his statement to the civil officer was not in 
itself an offer of a reward, and the status of the case is the same as the case considered 
in the comptroller's decision of February 5, 1914 (156 S. & A. Memo. 2981), where no 
reward was offered, and it was accordingly held that no reward could be paid, but 
that the expenses incurred by the civil officer in making delivery might legally be 
allowed. 

It has been provided in Army Regulations that "a reward of $50 will be paid to any 
civil officer or civilian for the apprehension and delivery" of deserters. Under a 
regulation of this character rewards may be paid whether offered in a specific case 
or not, the regulation itself constituting a general offer of a reward in all cases within 
its provisions. Difficulties of the character arising where an offer of reward has 
lapsed before delivery of the deserter and of like nature are therefore due to the limita- 
tions contained in the Navy Regulations on the subject. Recommended, That Navy 
Regulations be amended. File 26516-164, J. A. G., Dec. 30, 1914. 
9. Offers for— Where reward is offered to general public for arrest of a deserter from the 
naval service, such reward may be paid to any person complying with terms of offer 
without inquiry as to authority of such person to make arrests. File 26516-92 and 
92:1, J. A. G., Sept. 27, 1912. 

10. Private citizens— While private citizens may be entitled to receive a reward for return- 

ing a deserter from the Navy, the payment of such reward would not protect him 
from liability to the deserter for false imprisonment, if he was not authorized to make 
arrests. File 26516-92 and 92:1, J. A. G., Sept. 27, 1912. 

11. Private detective agency— "A reward for the arrest of a deserter or straggler with 

authorized expenses incurred in his return to the service may be paid to a 
private detective agency notwithstanding the prohibition in the act of March 3, 1893 
(27 Stat., 591), against the employment in any Government service of an 'employee 
of the Pinkerton Detective Agency, or similar agency.'" File 26516-38, J. A. G., 
Dec. 3, 1910; 26516-92:1, Sept. 27, 1912. 

12. Private detectives— u It has long been the practice to pay rewards to private detectives 

for the arrest and return of deserters and stragglers from the Navy, and reimburse- 
ment of expenses thus incurred has repeatedly been allowed without question." 
File 16154, Sec. Navy, May 27, 1903, quoted in File 26516-38, J. A. G., Dec. 3, 1910, p. 4. 

13. Sheriff— Payment of reward to the administrator of the estate of a sheriff. See Re- 

wards, 2. 

14. Substantial compliance— A legal offer for a reward for the return of a deserter was 

made and the deserter brought to the proper place for delivery and offered to the 
commanding officer. Held, Such is a substantial compliance with the offer made in 
the reward paper sent out. While a literal delivery of the deserter was not made, 
the person who had him in charge was prepared to fully complete that part of the 
contract. The offer being in the nature of a contract, after partial completion of the 
terms it could not then be revoked by the refusal to receive the deserter on board 
the ship. The reward may be paid to the proper person by the commanding officer. 
File 26516-195, Sec. Navy, Oct. 15, 1915. 

RIGHT AND WRONG TEST. See Insanity, 35; Responsibility for Crime, 1. 

ROAD POLL, TAX. See Poll Taxes, 1. 

ROBBERY. 

1. Charge and specification. See Charges and Specifications, SS, 92. 

2. Definition. See Robbery, 5, 7. 

3. Drunkenness— Admissible only to prove the absence of tha necessary specific intent. 

See Drunkenness, 49. 

4. Enlisted man— Charged with. C. M. O. 8, 1913, 5; 9, 1916, 6. 

5. Essentials— It is established by a large number of decisions thai the element in the 

legal definition of the crime of robbery which requires the taking to be "from the 
person" or "in the presence" of the owner or custodian should not be narrowlv con- 
strued. C. M. O. 8, 1913, 6. 

6. Intent. See Intent, 2; Robbery, 7, 8. 

7. Proof of— At midnight three enlisted men, including the accused, entered a shop and 

ordered "three ice creams" and afterwards one of them stole some chewing gum. 
Upon being remonstrated with by the shopkeeper the man struck the shopkeeper. 
whereupon the latter escaped into his room . The shopkeeper hearing t he cash regis! er 
ring he returned to the store and saw the accused leaving the store. The accused 



556 ROBBERY. 

was charged with "Robbery," the specification alleging that he did "by violence, 
feloniously take, steal, and carry away from a cash register" a sum of about S35. At 
the trial all the essential elements of robbery were proved; the intimidation of the 
custodian, violence, the felonious taking and carrying away with intent to deprive 
the owner of his property, together with the presence, actual or constructive, of the 
custodian. Held, That the fact that the custodian was not in actual sight of the 
cash register at the exact moment the money was taken is immaterial, and it would 
be a narrow interpretation of the definition of the crime of robbery to hold that the 
offense actually committed by the accused was not robbery. Held, further. That, 
as the element which constitutes the essential difference between "theft" and "rob- 
bery" was not alleged in the specification, thespecification did not support thecharge , 
there was no legal trial and conviction therein, and the finding was disapproved. 
C. M. 0. 8, 1913, 6-7. See also Charges and Specifications, 92. 

8. Specific intent— Required. C. M. O. 42, 1909, 10; 8, 1911, 5. 

9. Theft— The essential feature of the crime of " robbery" which distinguishes it from theft 

both in common law and statutory definition is the taking from the person or in the 
presence of the owner or custodian. (TJ. S. v. Jones, 26 Fed. Cas. No. 15494; State v. 
McCoy, 63 W. Va. 69; Houston v. Com. 87 Va. 257; Com. v. Humphries, 7 Mass. 242.) 
The considerable difference between the authorized punishments for the two 
offenses is an additional reason for alleging the respective crimes strictly according to 
their accepted legal definitions. C. M. O. 8, 1913, 6. 

RILES FOR TARGET PRACTICE. 

1. Regulations— Full force and effect of regulations. See Regulations, Navv, 14. 

RUL.ES OF EVIDENCE. See Evidence, 106-109. 

RULES OF STATUTORY CONSTRUCTION AND INTERPRETATION. See 

Statutory Construction and Interpretation. 

SABBATH DAY. See also Sunday Laws. 

1. Adjournment of courts-martial. See Adjournment of Courts-Martial. 

2. Observance of— "The President, Commander in Chief of the Army and Navy, desires 

and enjoins the orderly observance of the Sabbath by the officers and men in the 
military and naval service. The importance for man and beast of the prescribed 
weekly rest, the sacred rights of Christian soldiers and sailors, a becoming deference 
to the best sentiments of a Christian people, and a due regard for the Divine will, 
demand that Sunday labor in the Army and Navy be reduced to the measure of strict 
necessity. 

"The discipline and character of the national forces should not suffer, nor the cause 
they defend be imperiled, by the profanation of the day or name of the Most High. 

" ' At this time of public distress,' adopting the words of Washington in 1776, 'men 
may find enough to do in the service of God and their country, without abandoning 
themselves to vice and immorality.' The first General Order issued by the Father 
of his Country after the Declaration of Independence indicates the spirit in which our 
institutions were founded and should ever be defended: ' The General hones and trusts 
that every officer and man will endeavor to live and act as becomes a Christian soldier 
defending the dearest rights and liberties of his country.' * * * Abraham Lincoln." 
G. O. 5,'Feb. 10, 1863, publishing a general order of President dated November 15, 
1862. 

SAILBOAT. 

l. Gift to Government. See Gifts to Government, 1. 

SAILMAKERS AND CHD3F SAILMAKERS. 

1. Chief sailmaker— Tried by general court-martial. C. M. O. 73, 1901; 4, 1908. 

2. Command. See Command, 21. 

3. General court-martial— Tried by. C. M. O. 10, 1879; 52, 1880; 30, 1881; 32, 1881; 

53, 18S8; 39, 1S92; 18, 1897; 90, 1897. 

4. Staff officers— Classed as staff officers. See Command, 21. 

5. Warrant officer— A sailmaker is a warrant officer. C M. O. 18, 1897, 5. 



SCANDALOUS CONDUCT. 557 

SALARIES. See also Emolument; "Office," 3, 4, 17, 18; Pay. 
1 . Waiving or withholding — Under existing judicial decisions the salary of a Government 
officer which is fixed by law can not be withheld by executive officers nor waived by 
the officer himself (Rush v. United States, 35 Ct. Cls. 223; Andrews v. United States, 
47 Ct. Cls. 51, new trial allowed and judgment rendered in favor of claimant, March 16, 
1914). File 27231-47. 

SALE OF COMMISSIONS. See Commissions, 34; Congkess, 11. 

SALVAGE. 

1. Right of officers and crew to. See File 27601-116:2, J. A. G., May 17, 1915; 27673-342, 

J. A. G., Dec. 23, 1915. 

2. Same — "Under section 1536 R. S. it is made a part of the duty of the Navy to assist 

vessels in distress. In an opinion rendered as early as July 8, 1856 (7 Op. Atty. Gen., 
page 756), the Attorney General held that 'officers and crews of the public ships of the 
United States are not entitled to salvage, civil or military, as of complete legal right,' 
and added that 'the allowance of salvage, civil or military, in such cases, like th* 
allowance of prize money on captures, is against public policy and ought to be 
abolished in the sea service as it was long ago in the land service.' The distribution 
of prize money has since, by act of March 3, 1899 (30 U. S. Statutes at Large, p. 1007), 
been abolished, but there has been no late legislation respecting salvage. 

"In the recent history of the Navy no claim has been allowed for salvage, the de- 
partment having taken the ground, in a number of cases, that such claims should not 
be made. In one or two instances, where a bonus was voluntarily tendered for dis- 
tribution among the officers and men of a naval vessel, such gift has been informally 
accepted." (See also File 7173, J. A. G.) File 4496-79, Sec. Navy, Oct. 17, 1907. 

3. Same — In a recent salvage case the "actual cost of certain salvage services" rendered a 

merchant vessel by a naval vessel, $890.15, the amount thereof, was collected and de- 
posited to the credit of the United States. File 27601-116. 

SAMOA. 

1. General Order No. 121. See General Order No. 121, Sept. 17, 1914, 22. 

2. Officer— Tried by general court-martial at Tutuila, Samoa. C. M. O. 33, 1915. 

3. Reports from executive officers. See Guam., 10. 

SCANDALOUS CONDUCT TENDING TO THE DESTRUCTION OF GOOD 
MORALS. 

1. Attempted suicide— Charged under. See Attempted Suicide. 

2. "Beat up"— A statement made by one man to another that he will "beat up" a 

third party can not be construed as scandalous conduct tending to the destruction of 
good morals within the meaning of paragraph 1 of article 8 of the Articles for the 
Government of the Navy. C. M. O. 21, 1910, 11. 

3. Debts— Neglect and failure to pay charged under. See Debts, 24. This offense in 

general should be charged under "conduct unbecoming an officer and a gentleman." 

4. Enlisted men— Charged with. C. M. O. 25, 1914, 3; 10, 1915, 4; 3, 1916, 6. 

5. Fraudulent enlistment— At one time was charged under. See Fraudulent En- 

listment, 14, 82. 

6. Fraudulently— Misappropriating and applying to his own use money lawfully col- 

lected as duly authorized agent of Iaundryman, charged under. C. M. O. IS, 190S, 2. 

7. Judge advocate— Tried by general court-martial on charge of. C. M. O. 104, 1896. 
S. Midshipman— Charged with. C. M. O. 36, 1909. 

9. Money— An officer having received large sums of money belonging to enlisted men as 
deposits with him for safe-keeping while he was commanding officer was unable to 
account for $8,000. Tried by general court-martial. G. O. 67, Dec. 5, 1865. 

10. Officers— Tried by general court-martial. G. O. 67, Dec. 5, 1865; C. M. O. 57, 1SS0; 

4, 1909; 5, 1909; 48, 1910; 52, 1910; 2, 1911; 15, 1911; 27, 1911; 6, 1912: 13, 1912; 22. 1912: 
39, 1912; 4, 1913; 7, 1913; 15, 1913; 31, 1913; 37, 1913; 6, 1914; 7, 1914: S, 191-': 24, 1914; 
27, 1914; 30, 1914; 50, 1914; 19, 1915; 47, 1915; 1. 1916:18, 1916: G. C. M. Rec. 28881. 

11. Same— Officer tried by general court-martial for engaging in a brawl and disturbance 

in a public bar room. C. M. O. 23, 1882. 

12. Paymaster's clerks— Charged with. C. M. O. 29, 1011, 3; 30, 1911; 35, 1913; 24, 1915; 

26, 1915. 

13. Warrant officers— Charged with. C. M. (). 34, 190!': 35, 1909; 5. 1913; 29. 1913; 22. 1914: 

32, 1914. 

14. Warrant officers (commissioned)— Charged with. C. M. O. 29, 1913: 10, 1911. 

15. Same — Retired chief boatswain charged with. C. M. O. 15, 1915. 



558 SEAMAN GUNNERS. 

SCHOOL TAX. See Poll Taxes, 1. 

SCREENING AN OFFENDER. 

1. Dismissal — Of an acting assistant surgeon for screening an offender (an acting master) 
who kicked and abused a seaman. G. O. 35, May 5, 1864. 

SEA LAWYER. 

1. Defense of an officer— Convening authority declared that defense of an officer con- 
sisted of "a mass of flimsy technicalities, 'sea lawyer' objections, and efforts to escape 
by unofficerlike methods the penalties sure to follow his misdeeds, when the case was 
stripped of these and the facts remained." C. M. 0. 16, 1911, 3. 

SEA-DUTY. 

1. Naval Academy— Sea duty as part of the course at the Naval Academy. See Naval 

Academy, 22. 

2. Sea duty pay. C. M. O. 21, 1916. See also Pay, 64, 96. 

SEALS. 

1. Beneficiary slips. See Death Gratuity, 28. 

2. Commissions— Signed and sealed, can not be revoked. See Commissions, 22. 

SEAMAN GUNNERS. 

1. Classification — Hereafter seamen gunners will not be classed with petty officers, but 

with seamen first class. G. O. 341, Jan. 1, 1886. 

2. Definition, See Seaman Gunners, 4. 

3. Reduction In rating— Seaman gunners can not be reduced to a lower rating except 

by sentence of a court-martial. G. O. 341, Jan. 1, 1886. 

4. Same— A quartermaster third class, United States Navy, was convicted by a general 

court-martial of "Absence from station and duty without leave" and sentenced to 
be reduced to the rating of seaman gunner and to be confined at hard labor for a period 
of six months, with corresponding forfeiture of pay and dishonorable discharge. 

The department on March 30, 1914, approved the sentence but mitigated the same 
to detention in the disciplinary barracks, Port Royal, S. C. The accused was un- 
conditionally restored to duty from said barracks on September 14, 1914, with the 
rating of seaman gunner. # 

It later appeared from the statement of his commanding officer that the accused 
never attended the school for the instruction of seaman gunners, and that he had not 
successfully completed such a course, and was, therefore, not entitled to a certificate 
as seaman gunner, as provided in Navy Regulations, 1913, R-3564, nor was he entitled 
to the emoluments therefor, as provided in Navy Regulations, R-3565. These facts 
were not disclosed by the record of the general court-martial in this case which was 
approved by the department. 

Under the foregoing circumstances the question was raised as to what was the 
correct rating of the accused. 

The table of "Classification for disrating," contained in Navy Regulations, 1913, 
R-619, shows "seaman gunner " as one of the established ratings, but in authorizing 
reductions to that rating states: "When holding a certificate as such, otherwise 
seaman." This table is stated in the article cited to be published for the guidance 
of summary courts-martial. However, in court-martial order No. 30, November 1, 
1912, page 6, it is expressly stated, with reference to the sentence of a general court- 
martial: "Reduction to the rating of seaman gunner is applicable only in those cases 
of men holding a certificate as such." 

Navy Regulations, 1913, R-901 (3), provides that court-martial orders "shall have 
full force and effect as regulations for the guidance of all persons in the naval estab- 
lishment;" and the department has emphatically announced that court-martial 
orders are published by the department for the information and guidance of all 
officers in the service, and that they may be held accountable for ignorance thereof 
when occasion arises in which they should be governed by instructions contained in 
such orders. (C. M. O. 33, 1912, p. 3; File 26251-9538, pp. 5-6; 26287-2704.) 

It thus appears, both from the nature of the case and an express order on the subject 
issued by the department and having full force and effect as a regulation, that reduc- 
tion of a petty officer to the rating of seaman gunner is not authorized, even by sen- 
tence of general court-martial, where such petty officer does not hold a certificate 
as seaman gunner. Action of a court-martial alone is not sufficient to make an 
enlisted man a seaman gunner. Before he can hold that rating he must, under the 
regulations, take a course of instruction and receive a certificate as such. 



SEAMAN GUNNERS. 559 

There is no doubt that the purpose of the court was to comply with Navy Regu- 
lations, 1913, R-816 (3), which provides that— 

"In all cases in which the sentence imposed on a petty officer involves confinement, 
it should include reduction to one of the ratings below petty officer in the branch to 
which he belongs; and in the case of a noncommissioned officer of the Marine Corps, 
to private." 

"The law certainly does not contemplate that an enlisted man shall be reduced to 
a rating he is not competent to fill." (Comp. Dec, Jan. 23, 1915, App. No. 24240; 
File 26254-1703.) 

Had the court sentenced the accused to reduction to "seaman" the sentence would 
have been legal and would have fulfilled the requirements of Navy Regulations, 1913, 
R-816. Or had the error been disclosed by the record, the case could have been 
returned to the court for correction, in accordance with precedent, before the sentence 
was approved. (C. M. O. 30, 1912, p. 6.) 

But, however plain the purpose of the court, the sentence imposed was expressed 
in language equally plain, and was stated to be, that the accused "be reduced to the 
rating of seaman gunner, United States Navy." This sentence, for reasons given 
above, was improper and inoperative. To change the sentence so as to reduce the 
man to the rating of "seaman" would be to substitute a different sentence for that 
imposed by the court, and would not be authorized. Therefore the attempted re- 
duction in the accused's rating was ineffectual, and he retains the rating of quarter- 
master, third class, United States Navy (File 26251-8890:6). C. M. O. 49, 1914-5-6. 

SECRECY. 

1. Confidential publications. See Confidential Publications. 

2. Courts-martial trials. See Court, 126, 127, 171. 

3. Oaths — Naval courts-martial. See Criticism of Courts-Martial, 22, 35, 36; Oaths, 

20, 47. 

SECRET SOCIETY. 

1. Medical officers— Signing forms for enlisted men to secure sick dues. See Medical 
Records, 5. 

SECRETARY OF THE NAVY. 

1. Abuse of his powers— The Secretary of the Navy represents the President, and exer- 

cises his power on the subjects confided to his department. He is responsible to 
the people and the law for any abuse of the powers intrusted to him. His acts and 
decisions, on subjects submitted to his jurisdiction and control by the Constitution 
and laws, do not require the approval of any officer of another department to make 
them valid and conclusive. (U. S. v. Jones, 18 How., 95.) File 26543-66, J. A. G., 
Sept. 8, 1911, p. 8. 

2. Same— Legal liability. See Legal Liability, 3; Secretary of the Navy, 1. 

3. Absence of— In the absence of the Secretary and Assistant Secretary of the Navy, the 

President has directed that, until further orders, the duties of the Secretary of the 
Navy shall be performed by the following designated persons, in the order named : 
The Chief of the Bureau of Navigation; in his absence, the Chief of the Bureau of 
Ordnance; and in the absence of those two, the Chief of the Bureau of Steam En- 
gineering. File 12753-9, June 29, 1912. But see Act of March 3, 1915 (38 Stat., 940). 
which provides that the Chief of Naval Operations "shall be next in succession to 
act as Secretary of the Navy" during the temporary absence of the Secretary and the 
Assistant Secretary. See also Precedence, 29. 

4. Act of— Is act of the President. See President of the United States, 13, 26: Regu- 

lations, Navy, 16. 

5. Acting Secretary of the Navy. See Precedence, 29. 

6. Administration of the Navy— The Secretary of the Navy is charged with the adminis- 

tration of the entire Navy. See Adequate Sentences', 3. 

7. Appeals. See Appeals. 

8. Arrest — If in cases where such action should be taken by the convening authority 

(fleet or station), the record does not disclose that the accused was released from 
arrest and restored to duty, the Secretary of the Navy will issue directions. C. M. O. 
13, 1914; 40, 1915. See also C. M. O. 32, 1915. 

9. Auditor for the Navy Department— In certain cases Secretary of the Navy refuses 

to furnish information to the Auditor. See Auditor for the Navy Department, 
5; Death Gratuity, 23; Secretary of the Navy, 50. 

50756—17 36 



560 SECRETARY OF TH3 NAVY. 

10. Boards of Medical Examiners— Precept signed by. See Boards of Medical 

Examiners, 5. 

11. Censure— Secretary of the Navy may express approval or disapproval or censure acts 

or omissions of any officer, enlisted man, or civil employee. See Commendatory 
Letters, 2; Public Reprimand, 17, 18; Secretary of the Navy, 63. 

12. Civil liability— For abuse of power. See Legal Liability, 2, 3; Secretary of the 

Navy, 1. 

13. Commendatory letters. See Commendatory Letters, 2; Secretary of the 

Navy, 63. 

14. Commissions— The Secretary of the Navy may sign commissions issued to officers 

but "it is proper" that the commission should declare the act to be the act of the 
President performed by the head of the department as his representative. (22 Op. 
Atty. Gen. 82. See also O'Shea v. U. S., 28 Ct. Cls. 392). File 28687-4:1, J. A. G., 
Sept. 16, 1916. See also File 26521-152, J. A. G., Sept. 22, 1916. 

15. Same— Numbering of commissions is act of the Secretary. (Index, 1915, 11.) See 

Commissions, 26. 

16. Commuting sentences — Secretary of the Navy may not commute a sentence. See 

Commuting Sentences; Secretary of the Navy, 54. 

17. Same— While he may not commute he may remit, mitigate, or set aside. See Ad- 

ditional Punishment, 1. 

18. Comptroller of the Treasury— Policy of department regarding. See Comptroller 

of the Treasury, 2. 

19. Courts of Inquiry. See Courts of Inquiry, 2, 10. 

20. Court-martial orders — Fleet and station cases. See Court-Martial Orders, 12. 

21 . Criticism— Of officers, enlisted men or civil employees. See Commendatory Letters, 

2; Public Reprimand, 17, 18; Secretary of the Navy, 63. 
Criticism of courts-martial. See Criticism of Courts-Martial. 

22. Decisions— Weight of the decisions of the Secretary of the Navy. See Secretary of 

the Navy, 39. 

Decisions of the Secretary of the Navy distinguished from opinions of the Judge 
Advocate General. See Judge Advocate General, 30. 

23. Same— In easily accessible form in court-martial orders. See Court-Martial Or- 

ders, 8. 

24. Delegation of authority— As reviewing officer of a general court-martial can not be 

delegated, "he has been made by law the person whose duty it is to review the 
proceedings of courts-martial in cases of this kind. This implies that he is himself 
to consider the proceedings laid before him, and decide personally whether they ought 
to be carried into effect. Such a power he can not delegate. His personal judgment 
is required as much so as it would have been in passing on the case if he had been 
one of the members of the court-martial itself." (Runkle v. U. S., 122 U. S., 543.) See 
Criticism of Courts-Martial, 35. 

25. Disapproval of sentences by convening authority— No sentence can be carried 

into execution which has been disapproved by the convening authority (fleet) and 
the Secretary of the Navy is without power. File 7719-03, Sec. Navy, Nov. 18, 1903. 
See also Criticism of Courts-Martial, 35. 

26. Examining boards— Precepts signed by. See Naval Examining Boards, 4. 

Action upon records of Marine and Naval Examining Boards. See Promotion, 5, 
134. 

27. Fleet and station cases— Where the Secretary of the Navy is not the convening 

authority, in general, it is unnecessary for him to take any action on general court- 
martial cases unless he desires to set aside the proceedings or remit or mitigate the 
sentence in whole or in part C. M. O. 38, 1905, 2; Index-Digest, 1914, 35; Index, 1915, 
45. See also C. M. O. 107, 1894, 2; 89, 1899; 34, 1900; 4, 1914, 11; 19, 1914; 39, 1914; 48, 
1914; 13, 1915; 17, 1915; 40, 1915. But see C. M. O. 13, 1914. 

28. Same— Authority of Secretary of Navy to return for revision. See Criticism of 

Courts-Martial, 35. 

29. Fleet and station court-martial orders. See Court-Martial Orders, 12. 

30. Same— "This being a squadron case, and having received the approval of the com- 

mander in chief, further action by higher authority is not necessary in order to give it 
validity." It is, however, the right, and may in proper circumstances be the duty 
of the department to review a squadron case. (C. M. O. 9, 1893; 48, 1904.) File' 
3220-04, J. A. G., Aug. 9, 1904. 

31. Furlough— Secretary may place an officer on furlough. See Furlough, 2; Officers, 

106. 



SECRETARY OF THE NAVY. 561 

32. General courts-martial — Action of Secretary of the Navy in general court-martial 

cases — "The court having concluded its labors by acquitting the accused, the duty 
is devolved by law upon the Secretary of the Navy, as the convening and revising 
authority, to either approve or disapprove the findings of the court. The proper 
discharge of this duty involves, necessarily, the same calm, dispassionate, and un- 
biased consideration of the evidence and of the facts thereby established as has, pre- 
sumably, been given thereto by the court." C. M. O. 41, 1888, 4-5. 

33. Same — The department has a duty to perform, and that is, not only to carefully con- 

sider and weigh all the evidence before it, in order to determine whether it shall 
approve or disapprove the findings of the court, but likewise to avoid the possibility 
of sanctioning any conclusion, not clearly and fully sustained by the evidence, which 
may operate to create a dangerous precedent. It is possible that this consideration 
may not have been present in the mind of the court, but whether present or not, 
the responsibility of the department in this regard cannot be evaded or ignored." 
C. M. O. 41, 1888, 9. See also Setting Aside, 10. 

34. Same— Jurisdiction to convene. See Marines Serving with the Army, 7. 

The Secretary of the Navy may empower certain officers to convene general courts- 
martial. See Convening Authority, 27. 

35. Same— Power of Secretary of the Navy— To act on general courts-martial, in cases 

in which he is not convening authority, after final approval by convening authority. 
See File 26504-211; Criticism of Courts-Martial, 35. 

36. Same — "When received the record must be reviewed and recorded in accordance with 

law." File 14625-183:25. Sec. Navy, Apr. 9, 1912. 

37. Same — The Secretary of the Navy, when the convening authority, cannot delegate 

his power to review but must do so personally. See Criticism of Courts-Martial, 
35; Secretary of the Navy, 24. 

38. Judicial question— Not authorized to decide. See Voting, 7. 

39. Law, questions of— The decision of the department on questions of law is just as 

binding on naval courts-martial as a decision of a State supreme court on the lower 
courts of that State. G. C. M. Rec. 29422, p. 336. 

The department does not consider that it is called upon to furnish courts-martial 
with voluminous or exhaustive citations in support of the statements of the law. 
Congress has by express statutory enactment (Act, June 8, 1880, 21 Stat., 164) given 
the Judge Advocate General, under the direction of the Secretary of the Navy, cogni- 
zance of all questions of naval law arising in the naval service concerning the personnel ; 
and has furnished him with all necessary legal machinery, consisting of officers and 
civilian lawyers who have made a specialty of naval law in all its branches, and are 
supplied with exhaustive references to decisions and precedents in both civil and 
military cases, including every reported decision of the Federal and State courts since 
the foundation of this Government. In addition, Congress has by Statute (R. S., 
356, 357), placed at the command of the Secretary of the Navy the entire legal ma- 
chinery of the Department of Justice whenever he may find it necessary to call upon 
that department for assistance in determining questions of law arising in the naval 
service upon which he is in doubt. All the above mentioned sources of legal knowl- 
edge are made available to naval courts-martial by a regulation, issued by the Presi- 
dent pursuant to statutory authorization (R. S., 1547), as follows: " All communica- 
tions pertaining to questions of law arising before courts-martial, or to the proceedings 
thereof, which may require the action of the department, shall likewise be forwarded 
direct by such presiding officers" to the Judge Advocate General. (R-S50.) As a 
general rule members of courts-martial are not qualified by training and experience 
to strip reported civil cases of technical terminology and weigh the principles an- 
nounced in the various citations with assurance of deducing therefrom the correct 
conclusion of law. File 26251-12159, Sec. Navy, Dec. 9, 1916, pp. 1-2. 

In deciding questions of law for naval courts-martial, the department prefers to 
state legal conclusions in general terms, in every instance being prepared to support 
its statements of the law should it be called upon to do so in the civil courts, as some- 
times happens. File 26251-12159, Sec. Navy, Dec. 9, 1916, p. 3. 

40. Legal liability— For abuse of power. See Legal Liability, 3; Secretary of the 

Navy, 1. 

41. Litigation In civil courts— Policy of Secretary of Navy. See Civil Courts. 7. 

42. Mark of desertion— Discretion of Secretary of Navy. File 26539-551, J. A. G ., Mar. 17 t 

1913. See also Mark of Desertion. 



562 SECRETARY OF THE NAVY. 

43. Midshipmen— Dismissal by Secretary of the Navy. See Midshipmen, 80. 

44. Same — Discharge upon own application at end of four years' course. See Midshipmen. 

45. Naval examining boards— Secretary of Navy signs precept. See Naval Examining 

Boards, 4. 
Action upon record of Naval Examining Board. See Promotion, 5. 

46. Naval Militia— It is not the duty of the Secretary of the Navy to prescribe who shall 

constitute the Naval Militia. See Naval Militia, 4, 33. 

47. Officers— Secretary may censure, commend, etc. See Commendatory Letters, 2; 

Secretary of the Navy, 63. 

48. Pardon— The Secretary of the Navy can not pardon an offense. See Pardon S, 47. 

49. Plea in bar — Can not order court to try charges, where court allows plea in bar. See 

Revtewtng Authority, 15; Revision, 24. 

50. Powers — Of the Secretary of the Navy in cases in which the Auditor for the Navy 

Department requested information for the evident purpose of reviewing and possibly 
overruling decisions of the Navy Department upon questions of a purely military 
nature. See File 26260-347:C, Sec. Navy, Oct. 20, 1909; 26543-66, Sec. Navy, Sept. 8, 
1911. See also Auditor for the Navy Department, 5; Death Gratuity, 23. 

51. Same — Powers of where convening authority disapproved sentence — Where a con- 

vening authority, other than the Secretary of the Navy, of a general court-martial 
disapproved the sentence, the department stated in part: "The result of this action 
by the convening authority is that the officer escapes punishment altogether, as no 
sentence can be carried into execution which has been disapproved by the reviewing 
authority. No question, therefore, which concerns the accused officer is before the 
department, which is without power in the premises." File 7719-03. 

52. Same— In cases where he is not the convening authority the Secretary of the Navy 

can only inquire whether, in the exercise of his discretion, the convening authority 
has acted within the limits of his authority or overstepped them. See Criticism of 
Courts-martial, 35. 

53. Same— In one case an indorsement of the Marine Corps stated in part: "As the sentence 

in this case was approved * * * by the 'fleet convening authority,' it appears 
that no further action can now be taken." The sentence in this case was inadequate 
and the department so stated, but concurred in the above remarks. File 26262-2658, 
Sec. Navy, Oct. 13, 1916. 

54. Same— The Secretary of the Navy may set aside the proceedings or remit or mitigate, 

in whole or in part, the sentence imposed by any naval court-martial convened by 
his order or by that of any officer of the Navy or Marine Corps. C. M. O. 89, 1899; 
26, 1912, 4; 49, 1914, 4. See also File 26254-1823:2, p. 5; 20 Op. Attv. Gen., 243; 15 Op. 
Atty. Gen., 175; 17 Comp. Dec. 311; 13 Comp. Dec. 726; The Laura, 114 U. S., 411; 
6 Op. Atty. Gen. 488; Setting Aside, 10. 

55. Same — Power of Secretary of the Navy to remit or mitigate after final approval by con- 

vening authority. File 26504-210; 26504-211. 

56. Same — Only convening authority authorized to remit or mitigate sentences after final 

action thereon — The department has held that officers of the naval service convening 
general courts-martial are not authorized to remit or mitigate the sentences imposed 
by such courts-martial after having once acted thereupon. For example, where such 
officers had approved the proceedings, findings, and sentence of courts-martial and 
restored men to duty on probation , directing that should such men commit any serious 
offense report thereof be made to the convening authority for his consideration, with a 
view to terminating the probation, the department held that such procedure was 
objectionable, and that the convening authority should forward the record to the de- 
partment, "with recommendations as to the remission of the sentences," in order 
that " the only authority empowered to carry out the recommendations may in its discretion 
remit or mitigate the sentences." C. M. O. 17, 1910, 5-6; 1, 1912, 4. 

" The record [of proceedings of a general court-martial] having been approved bv 
the Commander in Chief, stands complete." 13 J. A. G. 323, June 11, 1904. 

57. Praise— Secretaiy may praise, censure, commend, criticise, etc. See Commendatory 

Letters, 2; Public Reprimand, 17; Secretary of the Navy, 63. 

58. President— Acts through the Secretary of the Navy— The act of the Secretary of the 

Navy in a matter under his jurisdiction is in legal contemplation the act of the Presi- 
dent ( Weller v. U. S., 41 Ct. Cls., 324). See Naval Examining Boards, 4; Regula- 
tions, Navy, 16. 



SECRETARY OF THE NAVY. 563 

59. Same— "The President, it is well settled, may act through the head of a department; 

and the acts of the head of a department are to be deemed the acts of the President," 
with certain exceptions now immaterial. (Truitt v. U. S., 38 Ct. Cls., 398.) File 
26521-152, J. A. G., Sept. 22, 1916. 

An order of the Secretary of the Navy appointing a meteorologist at a navy 
yard must be regarded as the order of the President. (Hayden v. U. S., 38 Ct. Cls., 39.) 
File 26521-152, J. A. G., Sept. 22, 1916. 

60. Public Reprimand— See Public Reprimand, 17, 18; Secretary of the Navy, 63. 

61. Record of proceedings— Secretary of the Navy declined to go behind the record. See 

Judge Advocate, 105. 

62. Records of the department— The Secretary of the Navy is made by law the personal 

custodian of the department's records. See Record of Proceedings, 85; Records 
of the Department, 7. 

63. Reprimand— The assumption that the Secretary of the Navy can not pronounce a 

rebuke, public or private, upon an officer for a breach of discipline, or a failure in the 
performance of duty, without obtaining the sanction of a court, is an unheard of 
proposition. The department impartially awards praise or blame to the officer who 
deserves one or the other, as occasion may arise; and the practice is as old as the 
department itself. Cases have occurred where the department, without trial, has 
pronounced emphatic reprimand upon officers in general orders. The publicity 
that is given either to its commendation or its reproof is a matter within its own 
discretion, in the exercise of which it consults only the public interests. File 26251- 
2993, Mar. 10, 1910, quoting letter of Sec. Navy, Jan. 14, 1891. See also C. M. O. 9, 
1893; File 26283-522, Feb. 12, 1913; Commendatory Letters, 2; Public Reprimand, 
17, 18. 

64. Resignations— The Secretary of the Navy is the proper administrative officer to 

accept resignations of naval officers. See Resignations, 28. 

65. Reviewing authority of general courts-martial— Delegation of powers. See Criti- 

cism of Courts-Martial, 35; Secretary of the Navy, 24. 

66. Revision — Power of the Secretary of the Navy to return records for revision after it 

has been acted upon by the convening authority. File 26504-211. 

67. Revocation — Of action on courts-martial. See Setting Aside, 8. 

68. Setting aside, proceedings, sentences, etc. See Setting Aside, 10. 

69. Steam engineering — The Secretary of the Navy or Acting Secretary, as the case 

may be, may sign all mail which requires the signature of the Chief of the Bureau of 
Steam Engineering during a vacancy in that office. File 22724-7e, May 14, 1909. 

70. Summary courts-martial— Action on. See Summary Courts-martial, 83. 

71. Voting — The Secretary of the Navy is without jurisdiction to decide right of officers 

and enlisted men to vote. See Voting, 7. 

72. Vulgar and indecent acts and associations of an officer— Secretary of the Navy 

may place officer on furlough . See Officers, 106. 

73. Waiving Regulations. See Regulations, Navy, 90-95. 

SEDITION. 

1. Definition— The accused was tried by general court-martial on a foreign station on the 
charges of "Scandalous conduct tending to the destruction of good morals," and 
"Uttering seditious words." 

The specification of the first charge alleged that, in a public barroom in Shanghai 
China, in the presence of two enlisted men of His Britannic Majesty's navy, "and 
several enlisted men of the United States Navy, the accused used, in a loud tone of 
voice, an obscene expression against the United States Navy, and also stated that the 
American bluejacket is no good, and had not treated the English right, or language 
of like import. 

The specification of the second charge alleged that, in the same place and in the 
presence of the same witnesses above mentioned, the accused used, in a loud tone of 
voice, seditious words in reference to the United States Navy, saying, in substance, 
"F the United States Navy." 

The accused pleaded not guilty to both charges and the specifications thereof. 

The court found both specifications proved and the accused guilty of both charges. 
_ Whereas the evidence conclusively proves the allegations set forth in the specifica- 
tions, in so far as the spoken words are concerned, thereby justifying the finding of 
guilty to the first charges there are two points which present themselves in considering 
the second charge and its specification: First, as to whether the words uttered are 



564 SEDITION. 

seditious; and, second, if classed in that category, the necessity of not only alleging 
but establishing the fact that they were intentionally so, and uttered with that 
purpose. 

The American and English Encyclopedia of Law, under the caption "Sedition," 
recites as follows: 

"In the United States it has been held that all publications which tend to degrade 
and vilify the Constitution, to promote insurrection and circulate discontent through 
its members, to asperse its justice and anywise impair the exercise of its functions, 
are seditious, and are visited with the peculiar rigor of the law." (Respublica v. 
Dennie, 4 Yates (Pa.), 270.) 

And the same authority further states: 

"Sedition is conduct tending toward treason, but wanting an overt act: attempts 
made by meeting or speeches or by publications to disturb the tranquillity of the 
State which do not amount to treason. All contempts against the sovereign and the 
government, and riotous assemblies for political purposes, may be reckoned under 
the head of sedition." 

"In criminal law; the raising commotions or disturbances in the State; it is a 
revolt against legitimate authority. The distinction between sedition and treason 
consists in this, that the ultimate object of sedition is a violation of the public peace 
or at least such a course of measures as evidently engenders it, yet it does not aim at 
direct and open violence against the laws or the subversion of the constitution." 
(Bouv.) 

"Any act which, if aimed against the military authorities would be mutiny, con- 
stitutes, if directed against the civil authorities, the crime of sedition." (O'Brien.) 

"This offense [sedition] which, as designated in the present article, is by the earliest 
writers nearly identified with mutiny, is in the more recent treatises distinguished 
as being a resistance to the civil power", demonstrated by riot or aggravated disorder. 
Thus, Simmons says: 'Sedition is supposed to apply to acts of a treasonable or riotous 
nature, directed rather against the public peace and the civil authority than military 
superiors, though necessarily involving or resulting in insubordination to the latter.' " 
(Winthrop's Military Law, Vol. II, p. 898.) 

In view of what the foregoing recognized authorities hold to be sedition, and as 
seditious words necessarily mean words of a seditious character, it is the opinion of 
the department that the words used by this accused can not well be classed as sedi- 
tious; neither should the same be considered more than a low, obscene, and idle 
expression, without any particular intent to either vilify the Constitution through 
the United States Navy, or to promote insurrection, or in any way impair the exercise 
of the functions of the United States Government. 

In view of this conclusion it hardly seems necessary to take up the second point 
involved, namely, that if classed as seditious the necessity is apparent of not only 
alleging, but establishing the fact that they were intentionally so and uttered with 
that purpose. Some remarks on this phrase of the case might, however, be appro- 
priate. 

In treating the subject of evidence, and particularly as it relates to the introduction 
under certain circumstances of evidence of other offenses to show intent, Wigmore, a 
recognized authority, says that in sedition (including seditious riot and seditious 
libel) other acts and utterances are receivable under the present principles to evidence 
seditious intent. In the same way the accused may offer his utterances and acts to 
evidence his loyal (i. e., nonseditious) intent. Wigmore on Evidence, vol. 1, sec. 
369, p. 370.) 

The specification in this case contained no allegation to the effect that the words 
uttered were either known to be seditious, or that they were spoken with that intent; 
and, in the opinion of the department, such allegation would appear to be essential. 

Furthermore, the evidence rather conclusively indicates that the accused was 
intoxicated at the time he used the expression on which this charge is based. 

"Where the question is whether words have been uttered with a deliberate pur- 
pose or are merely low and idle expressions, the drunkenness of the person uttering 
them is proper to be considered." (Greenleaf on Evidence, Vol. Ill, sec. 6, p. 10.) 

The same authority further remarks that, "Intoxication is now very generally held 
to be admissible, not to excuse a crime, but as bearing upon the question of mental 
capacity tc entertain express malice, or to exercise deliberation, or the actual presence 
of a deliberate intent in the mind of the prisoner at the time of the act." 



SEDITION. 565 

Where, therefore, the actual existence of any particular purpose, motive, or intent 
is a necessary element to constitute a particular species of crime or degree of crimi- 
nality, the fact that the accused was intoxicated at the time may be taken into con- 
sideration in determining the purpose, motive, or intent with which he committed 
the act. (3 Greenleaf on Evidence, 10, note.) 

Winthrop further remarks that drunkenness, if clearly shown in evidence to have 
been such as to have incapacited the party from entertaining such purpose or intent, 
will ordinarily be properly treated as constituting a legal defense to the specific act 
charged. It might be remarked, however, that if the drunken act has involved a 
disorder or neglect of duty prejudicial to good order and discipline, and such will 
almost invariably be the fact, the accused may be convicted of an offense under the 
latter charge. (Winthrop's Military Law, 2ed., p. 441.) 

From a careful review of the evidence adduced in this case, it appears that the 
accused was intoxicated, and hardly capable of entertaining a deliberate purpose or 
intent, and the words spoken by him were nothing more than a low, obscene, and 
idle expression of a drunken man, uttered without particular significance or me anin g, 
certainly without seditious meaning or purpose, and should be treated as such. 

In view of the foregoing the findings of the court on the second charge and specifi- 
cation thereof were disapproved by the department; but the punishment adjudged 
by the court being considered none too severe for the offenses of which the accused 
was found guilty, the proceedings and the findings on the first charge and the sen- 
tence were approved. C. M. 0. 14, 1910, 13-15. 
2. "Uttering seditious words"— Enlisted man charged with. See Maliciously Utter- 
ing Seditious Words, 1; Sedition, 1; Uttering Seditious Words. 

SELECTION. 

1. Promotion by selection. See Promotion by Selection. 

SELF DEFENSE. See Manslaughter, 12; Murder, 32. 

SELF-INCRIMINATION. 

1. Accused— Status of, as witness. See Witnesses, 1—11. 

2. Accused may not object to another incriminating himself— The accused cannot 

object to such testimony and has no right to insist upon the privilege and require the 
court to exclude the evidence on that ground. The witness may waive his privilege 
and testify in spite of any objection coming from the accused or his counsel. If the 
witness claims his privilege but is nevertheless required to testify, it is a matter ex- 
clusively between the court and the witness. Under such circumstances the accused 
is in no worse predicament than if the witness had come forward voluntarily to testify 
or had failed to avail himself of his privilege. (17 Op. Atty. Gen., 616) C. M. 0. 29, 
1914, 7. See also File 26262-2405. 

3. Claiming— How the privilege is claimed— The method of the witness availing himself 

of the privilege is by claiming it after the question has been put. (McKelvey , p. 376.) 
"The proper course in any case where a witness claims the privilege of declining to 
answer questions on the grounds of self-crimination [or degradation] is for the witness 
to state in specific terms why he refuses to answer, and then the court must decide 
whether or not the privilege should be allowed." (C. M. O. 17, 1910, 13.) "The 
witness should not be required to explain fully how his answer would tend to criminate 
[or degrade] him." (40 Cyc, 2550.) The grounds on which the refusal is based, 
that is whether criminating or degrading (C. M. . 17, 1910, 13), as well as the question, 
should appear in the record. (McKelvey, p. 376.) C. M. O. 29, 1914, 12. 

4. Comment, no— Witness may decline to answer and if privilege is allowed, no inference 

or unfavorable comment is to be made— "In the exercise of this privilege the law 
protects the witness from unfavorable presumptions; for if it be exercised, no legal 
inference as to the truth of the matter which w r as the subject of the inqiiirv is permitted 
to be drawn." (1 Winth., p. 525.) "In any case where it is rightly claimed and is 
upheld by the court the privilege is so complete that the prosecutor will not be 
allowed to even comment upon the refusal of the witness to answer." (C. M. O. 17, 
1910, 13.) C. M. O. 29, 1914, 11. 

5. Compulsion— If the answer, made under compulsion, is criminating, it can not be used 

in evidence against the witness subsequently— If the privilege claimed by t he wil DOSS 
be on the ground of self-crimination, and the "court should compel him to answer a 
question, deemed proper by it, the answer thereto, if it should prove criminating, can 
not be given in evidence ag'ainst him. (Dudley, p. 2S9.) "The general rule certainlv 



566 SELF-INCRIMINATION. 

is that evidence given or statements made by a party under compulsion or order of 

court, tending to criminate himself, can not be put in evidence on a criminal proceeding 

against him." (U. S. v. Prescott, 2 Dill, 405, 27 Fed. Cas. 16085.) C. M. O. 29, 1914, 14. 

6. Contempt of court— If directed by the court the witness must answer the question 

or be in contempt. See Contempt of Court, 7. 
,7. Court decides whether the privilege should be allowed— The question of whether 
an answer might criminate or tend to criminate or degrade a witness is a pre- 
liminary question of fact for the court to decide. (See C. M. 0. 17, 1910, 13, and McKel- 
vey, p. 380.) "A witness cannot be left to say for himself when he will or will not 
answer questions and then defend himself from punishment by hiding behind his 
privilege." (McKelvey, p. 380.) "The witness will not be required to explain in 
what manner the answer would criminate for degrade] him, as this would defeat the 
object of the rule." (Jones on Evidence, p. 889.) "A witness is not the sole judge 
whether a question put to him, if answered, may tend to criminate [or degrade] him. 
* * * But if the fact once appear, that the witness is in danger, great latitude will 
be allowed him in judging for himself the effect of any particular question." (2 Bouv., 
1244.) "It is not the rule, however, that the privilege must always be extended to the 
witness, if asked. While the court should be extremely careful to protect the witness 
in his right, yet the danger must be something more than a merely fanciful or imaginary 
danger. 

"It must be real, with reference to the probable operation of law in the ordinary 
course of things, and not merely speculative, having reference to some remote and un- 
lucky contingency. The court must see, from the circumstances of the case and the 
nature of the evidence which the witness is called to give, that there is reasonable 
ground to apprehend danger to the witness from his being compelled to answer, and 
that it would naturally subject him to actual punishment." (3 Jones on Evidence, 
pp. 888-889.) C. M. O. 29, 1914, 14. 

In connection with the discussion in Court-Martial Order No. 29, 1914, page 14, lines 
13-38, of criminating and degrading questions, the following is quoted from a decision 
of Chief Justice Marshall: "It is the province of the court to judge whether any direct 
answer to tbe question which may be proposed will furnish evidence against the 
witness. If such answer may disclose a fact which forms a necessary and essential 
link in the chain of testimony, which would be sufficient to convict him of any crime, 
he is not bound to answer it so as to furnish matter for that conviction. In such a case 
the witness must himself judge what his answer will be; and if he say so on oath that 
he can not answer without accusing himself, he can not be compelled to answer." 
(U. S. v. Burr, 25 Fed. Cas., 38; Counselman v. Hitchcock, 142 U. S., 547.) C. M. O. 
53, 1914, 5. 

8. Court, in proper cases, may inform the witness of his privilege — In proper cases, 

however, the court may, in its discretion, inform the witness of his rights. (17 Op. 
Atty. Gen., 616; C. M. O. 49, 1910, 9; 14, 1910, 12.) "So, whereas, there appears to be 
no objection, if it be deemed necessary, to cautioning an ignorant witness against 
incriminating himself, when he voluntarily takes the stand, such caution should be 
properly worded. That is, if he is without counsel, he may, if deemed necessary, be 
advised, that in the examination in chief he need not answer questions which will 
tend to criminate him; but, if answered on the direct examination, he must submit 
to a full cross-examination on the subject matter that is brought out, notwithstanding 
the answers may tend to criminate or disgrace him." (C. M. O. 49, 1910, 9; 14, 1910 
12.) C. M. O. 29, 1914. See also C. M. 0. 16, 1916, 7; G. C. M. Rec. 31509, p. 34. 

9. Court of inquiry— The defendant before a court of inquiry shall be allowed, if he so 

desires, to testify in his own behalf, but he may decline to answer anv question which 
may tend to incriminate himself. (R-421.) See File 26251-12895, 1917. 

10. Degrade. See Self Crimination, 11, 12. 

11. Disgrace— Questions, the answers to which would disgrace or degrade, but not tend to 

criminate, may be asked on matters material to the issue on trial but not as to col- 
lateral, irrelevant, or immaterial matters— "A witness may be compelled to answer 
as to a matter which is material to the issue on trial, notwithstanding his answer may 
have a tendency to disgrace him cr bring him into disrepute; but may refuse to answer 
where the inquiry is as to collateral, irrelevant, or immaterial matters. Accordingly 
he may fall back upon his privilege and refuse to answer if his answer could have no 
effect upon the case except to impair Ms credibility, unless the answer of the witness 
will not directly show his infamy, but only tend to disgrace him, in which case he is 
bound to answer." (40 Cyc, 2534.) " He can not, it would seem, refuse to give tes- 
timony, which is material and relevant to the issue, for the reason that it would 
disgrace him or expose him to civil liability." (2 Bouv., 1244.) 



SELF-INCRIMINATION. 567 

This privilege does not permit a witness to remain silent "when the answer which 
the witness may give will not directly and certainly show his infamy, but will only tend 
to disgrace" (1 Greenl. Ev., sec. 456), as "it must be seen to have that effect certainly 
and directly" (2 Bouv., 1244); that is, the answer must be one which would clearly 
degrade and not merely tend to degrade. 

Since the proviso to the act of February 16, 1909, section 12 (35 Stat., 622) (Navy 
Regulations, 1913, R-42), discussed under the heading "Witness is privileged from 
answering criminating questions," is declaratory of the common law on the subject, 
the common law principles expressed above are not inconsistent with this proviso 
and apply to all witnesses who appear before any kind of a naval court. CM. O. 
29, 1914, 11-12. 

12. Same— As to impeaching a witness it may be stated as the weight of modern authority 

that, "the fact that a witness has been convicted of crime may be brought out as 
bearing on his credibility, where the crime amounts to a felony, or is infamous in its 
nature, and involves moral turpitude. But it is usually held that a witness is not 
to be discredited by showing his conviction of a mere misdemeanor, or minor offense 
not involving moral turpitude, or infamous in its nature." (40 Cyc, 2607.) C. M. O. 
16, 1916, 8. See also Witnesses, 52. 

13. No privilege — On the ground that the answer would tend to criminate if the testimony 

can not be used to convict or as to a matter brought out in examination-in-chief.—" The 
privilege [against self-crimination] can not, of course, be claimed where the criminal 
liability has ceased— as where the witness has been finally tried for the offense re- 
ferred to in the question" (1 Winth. p. 525. SeealsoC. M. 0. 25, 1909); "or prosecution 
for the same has been barred by the statute of limitations. Nor can it be claimed on 
the cross-examination where the witness has voluntarily testified without objection, 
as to the subject of the question on the examination-in-chief." (1 Winth., p. 525.) 
Nor where the witness has been pardoned for the offense involved in the inquiry. 
(40 Cyc, 2542.) Where a witness declines to testify on the ground that his testimony 
might criminate him, and the President has issued an unconditional pardon, the 
witness is thereby deprived of the right to claim the privilege, without reference to 
whether he accepted the pardon or not. (U. S. v. Burdick, 211 Fed. Rep., 492. See 
also Hale v. Henkel, 201 U. S., 43.) 

But if the privilege is claimed on the ground that the answer would degrade or dis- 
grace the witness, as hereinafter explained, and the inquiry is as to matter not involved 
in the issues on trial — as, for instance, questions affecting the witness' credibility— 
the fact that criminal liability has ceased by reason of former trial, the bar of the 
statute of limitations, or pardon, does not prevent the witness claiming the privilege. 
C. M. O. 29, 1914, 11. See also Self-Incrimination, 12. 

14. Same— The case of U. S. v. Burdick (211 Fed. Rep., 492) cited in Court-Martial Order 

No. 29, 1914, page 11, lines 22-26, was reversed by the Supreme Court of the United 
States. 

The facts in this case are as follows: Burdick first appeared before a grand jury 
and declined under oath to answer questions on the ground of crimination. The 
President thereupon issued an unconditional pardon for any offenses committed by 
Burdick in reference to the subject matter of the questions, the answers to which 
Burdick claimed might criminate him. Burdick declined to accept the pardon, or 
to answer certain questions, giving the reason, as before, that the answers might tend 
to criminate him. He was presented by the grand jury to the district court for con- 
tempt and adjudged guilty thereof, but given an opportunity to purge himself of con- 
tempt by answering the questions. He refused again. The district court decided 
that the President "has power to pardon for a crime of which the individual has not 
been convicted and which he does not admit, and that acceptance is not necessary 
to toll the privilege against incrimination." 

The Supreme Court reversed the district court, Mr. Justice McKenna, who delivered 
the opinion of the court on January 25, 1915, saying in part as follows: '"Granting, then, 
that the pardon was legally issued and was sufficient for immunity, it was Burdick 's 
right to refuse it, as we have seen; and it, therefore, not becoming effective, his right 
under the Constitution to decline to testify remained to be asserted." (Burdick 
v. U. S., 235, U. S., 267.) C. M. O. 53, 1914, 5. 

15. Pardon. C. M. O. 29, 1914, 11; 53, 1914, 5. See also Self-crimination, 13, 14. 



568 SELF-INCRIMINATION. 

16. Personal privilege— Privilege is a personal one and may be claimed by the witness 

only— The privilege may be claimed by the witness but is strictly personal to him 
and if he does not claim it for himself no one else can claim it for him. (40 Cvc, 2548; 
C. M. O. 49, 1910, 9; 55, 1910, 10; 14, 1910, 12; 6, 1913, 4; 8, 1913, 5; 17 Op. Atty. Gen., 616.) 
Accordingly the accused can not claim the privilege for another who is a witness 
(40 Cyc, 2548; 17 Od. Atty. Gen., 616), nor can such claim be interposed by counsel 
for the accused (40 Cyc, 2548; 17 Op. Atty. Gen., 616; C. M. O. 49, 1910, 9; 55, 1910, 10; 
6, 19.13, 4) nor should the court interfere, but should leave the matter with the witness 
to avail himself of his privilege, or not, as he sees fit. (3 Jones on Evidence, p. 893; 
C. M. O. 49, 1910, 9; 8, 1913, 5; 29, 1914, 12. See also C. M. O. 18, 1897, 4.) 

17. Privilege in general — Witness is privileged from answering criminating questions — 

"It is an established principle of the common law, recognized indeed and affirmed 
in the United states Constitution, that a witness * * * may refuse and can not 
be required to answer a question the answer to which may tend to criminate him; 
or, as it is expressed by Greenleaf , < have a tendency to expose him to a penal liability, 
or to any kind of punishment, or to a criminal charge'; or even, in the language of 
Chief Justice Marshall, form a link in the 'chain of testimony which is necessary to 
convict an individual of crime.' * * * In military cases the principle has 
properly been recognized where the answer to the question might subject the witness 
either to a military or a civil prosecution." (1 Winth., pp. 524-526.) 

The act of February 16, 1909, section 12 (35 Stat., 622) (Navy Regulations, 1913, 
R-42), contains the following proviso: 

"No witness shall be compelled to incriminate himself or to answer any question 
which may tend to incriminate or degrade him." 

It would appear that the said proviso was intended to be declaratory of the common 
law on the svhject, and under such circumstances the rule of construction applies that 
statutes are to be construed with reference to the principles of common law and in 
harmony therewith, unless a different intention on the part of the legislature is mani- 
fested. 

Accordingly the principles under this heading apply to all witnesses, whether in 
the naval service or civil life. C. M. O. 29, 1914, 10. 

18. Waiving the privilege— How the privilege is waived— "The witness may waive the 

privilege by failing to make timely objection. For still stronger reasons, the privilege 
is waived if no objection whatever is made." (3 Jones on Evidence, p. 893.) "The 
privilege being for the protection of the witness, he may waive it, but once having 
elected to do so he is not permitted to stop, but must go on and make a full dis- 
closure" (Dudley, p. 290; see also C. M. 0. 17, 1910, 15), "although in so doing he 
exposes himself to a criminal charge." (C. M. O. 17, 1910, 14.) C. M. O. 29, 1914, 13. 

19. Witness must answer — If directed by the court to answer, the witness must do so 

or be in contempt. C. M. O. 29, 1914, 13. See also Contempt of Court, 7. 

20. Witness only may claim. See Self-incrimination, 16. 

SELF-SERVING STATEMENTS. C. M. O. 29, 1914, 8; 2, 1917, 2. See also Words and 
Phrases. 

SENATE. 

1. Appointments of officers — Confirmation by Senate. See Commissions, 36. 

2. Court of inquiry— Reopened on request of Senate. See Courts of Inquiry, 49. 

3. Resolution— Senate resolution requested Secretary of the Navy to reopen court of 

inquiry. See Courts of Inquiry, 49. 

SENIOR OFFICER PRESENT. See also Summary Courts-martial. 38. 

1. Action of— Importance of. See Convening Authority, 2. 

2. Same — Word "findings" not used in action on summary courts-martial. C. M. O. 

36, 1914, 5. But see Findings, 86. 

3. Binding of court-martial records. See Binding of Court-martial Records. 

4. Changing action after promulgation— As a reviewing authority (senior officer 

present) can not change his action upon a court-martial after such action has been 
promulgated and the accused duly notified, it would not be proper for the successor 
m office of such senior officer present to do what the original reviewing authority 
could not do. If the proceedings have not been published nor the accused notified, 
it would be proper for such successor in office to take further action upon a case as 
might seem to him necessary and proper. File 26287-1121, J. A. G., Feb. 24, 1912. 



SENIOR OFFICER PRESENT. 569 

5. Convening authority also— Should there be no officer present senior to the con- 

vening authority of a summary court-martial, he shall, in subscribing his action 
upon the record, add to his title the words, "Senior Officer Present." C. M. O. 34, 
1913, 3. See also Convening Authority, 2, 58. 

6. Same — An enlisted man was tried by summary court-martial on board the U. S. S. 

Ozark and sentenced to forfeiture of pay and bad-conduct discharge. The record dis- 
closed that the convening authority was also the senior officer present and took 
separate actions thereon; that is, he acted on the case as convening authority and 
also took separate action thereon as senior officer present. Navy Regulations, 1913, 
R-620 (4) provide, "If the convening authority approves the whole or any part of 
the sentence adjudged, he shall transmit the record to the commander in chief, or in 
hisabsence to thesenior officer present. Should no officer senior to himself be present, 
he shall, in subscribing his action upon the record, add to his title the words ' Senior 
Officer Present. ' " This one action is thus made to serve a double purpose in such 
cases. (See C. M. O. 6, 1915, p. 5) C. M. O. 12, 1915, 5. 

7. Commandant of navy yard. See Commandants of Navy Yards and Naval 

Stations, 4. 

8. Definition. See Reviewing Authority, 7. 

9. Disapproval ot proceedings— And approval of sentence by senior officer present. 

See Reviewing Authority, 20. 

10. Engine room. See Emergency, 5. 

11. G. O. 110. See General Order 110, July 27, 1914, 21. 

12. Navy yards and naval stations. See Commandants of Navy Yards and Naval 

Stations, 4. 

13. Reconvening— Senior officer present may direct the convening authority to reconvene 

summary court-martial. C. M. O. 29, 1915, 11. See also Reconvening, 16. 

SENIORITY. 

1. Promotion by seniority. See Promotion, 172-174. 

2. Superior officer — Seniority in the Navy list conveys superiority. See Superior 

Officers, l. 

SENTENCES. 

1. Abbreviated improperly. See Abbreviation, 2. 

2. "Accessories "—Used in sentences of civil courts. See Accessories, 1. 

3. Same— Definition— The words "other accessories of said sentence" when used in the 

sentence of a general court-martial shall be understood to include the following: 
The person so sentenced shall perform hard labor while confined pursuant to such 
sentence, and after his accrued pay (and allowances in the case of an enlisted man of 
the Marine Corps) shall have discharged his indebtedness to the United States at the 
date of approval of such sentence, shall forfeit all pay (and in the case of an enlisted man 
of the Marine Corps sentenced to dishonorable discharge, all allowances) that may 
become due him during a period equivalent to the term of such confinement (or if 
sentenced to dishonorable discharge during his current enlistment), except the sum 
of $3 per month during such confinement for necessary prison expenses, and if dis- 
honorably discharged pursuant to such sentence, a further sum of $20 to be paid hint 
when discharged. (R-816 (5).) See C. M. O. 3, 1914, 4. 

4. Accused— Sentence furnished accused. See Accused, 3G, 57; Record of Proceed- 

ings, 32. 

5. Additional numbers— Included in counting numbers lost by sentence. See Addi- 

tional Numbers, 2. 

6. Adequate. See Adequate Sentences. 

7. Adhered to— Should be in handwriting of judge advocate. See Revision. 17. 

8. Alias— Of accused should be included. -See Alias, 4. 

9. Allowances. See Allowances, 1, 3, 4, 8-10. 

10. Alterations— The judge advocate in recording the sentence in revision made a clerical 
error in the phraseology and also, having made a mistake in writ ing a w ord j attempted 
to correct his error by writing the word "adhere" over it. It has previously boon 
pointed out that if the judge advocate makes a mistake in recording the sent once 
he should rewrite the whole page. (Sec Forms of Procedure, 1910. p. 43; C. M. O. 6, 
1916, pp. 3-4.) It has also repeatedly been remarked that the members of the court, 
as well as the judge advocate, are responsible for errors of t he above character appear- 
ing in the record. (See C. M. O. 55, 1910, pp. 9-10: 14, 1913, p. 5; 27, 1913, p. 12; 17, 
1915, p. 2; 35,1915, p. 7; 6, 1916, p. 4; 10, 1916, 3.) 



570 SENTENCES. 

11. Ambiguous. See C. M. O. 11, 1915; Discharge, 3. 

12. Antedating. See Antedating, 3; Confinement, 1, 9. 

13. Approved— Only that accused might not escape punishment. See Approval Only 

That Accused Might Not Entirely Escape Punishment. 

14. Army— Sentence imposed by Army court-martial mitigated by President after return 

of accused to naval jurisdiction. See Marines Serving with Army, 6. 
Mitigation of sentence after final approval. See Articles of War, 3. 
Sentence of dismissal mandatory by law for "conduct unbecoming an officer and 

a gentleman." See Conduct Unbecoming an Officer and a Gentleman, 6; 

Court, 169. 

15. Authentication of. See Authentication of Sentences, 1; Court, 149, 175. 

16. Bad-conduct discharge. See Bad-Conduct Discharge. 

17. Bread and water. See Bread and Water. 

18. Civil court sentence suspended— Jurisdiction of naval eourts-martial. See Jurisdic- 

tion, 124. 

19. Clemency. See Clemency, 13, 41, 54, 57. 

20. Clerical errors — Correction of, in revision. See Clerical Errors, 3; Record of 

Proceedings, 26. 

21. Same— The department returned a general court-martial record for revision as "the 

sentence contained a clerical error, inasmuch as the word 'to' was omitted before the 
words 'be paid'." C. M. O. 7, 1897, 2. 

22. Commuting sentences. See Commuting Sentences. 

23. "Conduct unbecoming an officer and a gentleman"— Dismissal should be 

mandatory in Navy. See Conduct Unbecoming an Officer and a Gentleman, 6; 
Court, 169. 

24. Confinement. See Confinement; Deck Courts, 35-37. 

25. Confinement to limits of ship, post, or station— Not viewed with favor. See 

Confinement, 12, 19, 20, 21, 22. 

26. Convening authority can not dictate — To the court what sentence to adjudge. 

See Convening Authority, 60; Criticism of Courts-martial, 36. 

27. Court— Should not prescribe in its sentence how or when such sentence shall be exe- 

cuted. Such matters are properly within the province of the reviewing authority. 
See Court, 168; General Order No. 110, July 27, 1914, 21. 

28. Court-martial orders— Should be consulted to secure uniformity. See Court- 

Marttal Orders, 17. 

29. Date— To begin. C. M. O. 27, 1887, 16. See also Antedating, 3. 

30. Death. See Desertion, 137; Charges and Specifications, 47; Military Commis- 

sions, l: Sentences, 70, 

31. Deck court. See Deck Courts, 51-56. 

32. Deprivation of liberty on shore on foreign station. See Deprivation of Liberty 

on Shore on Foreign Station. 

33. Designation and name of accused— Should be included in sentence. C. M. O. 37, 

1909, 3; 42, 1909, 6; 55, 1910, 8; 30, 1910, 7; 1, 1913, 5; 20, 19, 1913, 3; 42, 1914, 5; 2 
1915, 2. But see C. M. O. 12, 1914; 17, 1914; 23, 1914, where name and designation 
was erroneously omitted. See also Designation of Accused, 2-4. 

34. Dictate — Convening authority can not dictate to court what sentence to adjudge. 

See Convening Authority, 60; Criticism of Courts-Martial, 36. 

35. Disapproved by convening authority — No sentence can be carried into execution 

which has been disapproved by the convening authority (fleet) and the Secretary of 
the Navy is without power. See Convening Authority, 21; Criticism of Courts- 
martial, 35; Reviewing Authority, 20. 

36. Discharge. See Bad-conduct Discharge; Dishonorable Discharge; Ordinary 

Discharges. 

Remission of unexecuted loss of pay by discharge. See Bad-conduct Dis- 
charge, 3. 

37. Dissolution of court — Sentence imposed prior to dissolution may be approved. See 

CM. 0.4, 1914, 1. 

38. Dismissal. See Acting Boatswains, 2; Dismissal. 

39. Erasures. See Erasures, 2, 3. 

40. Extra police duties. See Extra Police Duty. 

41. Excessive. See Convening Authority, 60; Excessive Sentences. 

42. Executed fully— Can not be any restoration. See Pardons, 35. 



SENTENCES. 571 

43. Same— When the sentence of a naval court-martial, lawfully confirmed, has been 

executed, the proceedings in the case are no longer subject to review by the President; 
they have passed beyond his control and are at an end. (15 Op. Atty. Gen., 291). 
File 26516-9, J. A. G., May 28, 1909. See also 7 Op. Atty. Gen., 99; 25 Op. Atty. Gen., 
581; Numbers, Loss of, 11, 12. 

44. Execution, impossibility of — To lose ten numbers when only seven. C. M. O. 18, 

1897, 5. 

45. Exemptions in sentences. See Exemptions in Sentences. 

46. Extra police duties. See Deck Courts, 56; Extra Police Duty. 

47. Figures— The sentence as recorded in the handwriting of judge advocate should express 

the period of confinement in figures as well as in words. G. C. M. Rec. 30083. 

48. Flogging. See Desertion, 119; Flogging, Marine Corps Gazette, March, 1916, p. 45. 

49. Form of sentence— Sentences of general courts-martial in the cases of enlisted men 

of the Navy and Marine Corps which include confinement at hard labor will ordi- 
narily be in the following form: 

"The court therefore sentences him, , , United States (to 

be reduced to the rating (or rank) of ), to be confined for a period of 

(then to be dishonorably discharged from the United States naval service), and to 
suffer all the other accessories of said sentence, as prescribed by the Navy Regu- 
lations." (R-816(4).) 

50. Fraudulent enlistment— Enlistments in both Navy and Marine Corps. See Fraudu- 

lent Enlistment, 83. 

Sentence should include dishonorable discharge. See Fraudulent Enlistment. 
40,84. 

51. Guard duty. See Guard Duty, 3. 

52. Handwriting— Sentences must be in handwriting of deck-court officers, recorders, or 

judge advocates. C. M. O. 24, 1909, 3; 29, 1914, 5; 42, 1914, 5; 8, 1915; G. C. M. Rec. 
22105; 22149. See also Handwriting, 7-9; Revision, 18, 35, 36. 

53. Hard labor. See Hard Labor. 

54. Illegal. See Bread and Water, 4. 

55. Inappropriate sentences— " To be discharged with bad -conduct discharge, as a de- 

serter, the discharge to be dated upon the day he left the Juniata, May second, 
eighteen hundred and eighty-nine." Disapproved by the department as "being 
both improper and inadequate." C. M. O. 70, 1889. 

Similarly, "to be dishonorably discharged as a deserter from the service." De- 
partment disapproved as inappropriate and inadequate. C. M. O. 82, 1889. 

56. Same — Department does not favor sentences of public reprimand for officers; loss of 

pay for commissioned officers other than commissioned warrant officers; or suspen- 
sion from duty. See Pay, 100,109. Public Reprimand, 5; Suspension from Duty. 

57. Insanity. See Insanity, 37, 38, 39. 

58. Interlineations— The sentence must be recorded by the deck-court officer's, recorder's 

or judge advocate's own hand and must be free from erasures and interlineations. 
G. C. M. Rec. 23760. See also File 26251-11076, Sec. Navy, Oct. 13, 1915, where an 
initialed interlineation was held not to invalidate. 

In reviewing the general court-martial record in the case of a private, it was noted 
that the sentence contained an interlineation initialed by the judge advocate. While 
this irregularity was not such as would invalidate the proceedings, the department 
disapproves such action by the judge advocate. The members of the court, as well 
as the judge advocate, are responsible that the record does not contain irregularities 
of this character. (Forms of Procedure, 1910, p. 43.) File 26251-11076, Sec. Navy, 
Oct. 13, 1915; G. CM. Rec. No. 31051; C. M. O. 35, 1915, 7. 

59. Joinder. See Joinder, Trial in, 15. 

60. Judge advocate— Must sign sentence. C. M. O. 30, 1900. 

61. Mandatory. See Conduct Unbecoming an Officer and a Gentleman, 6; Re- 

duction in Rating, 19. 

62. Marine serving with Army. See Marines Serving with Army, 6, 7. 

63. Midshipmen. See Midshipmen, 32. 

64. Mitigation or remission after final action. See Convening Authority, 62. 

65. Name and designation— Of accused should be included hi sentence. See Designa- 

tion of Accused, 2, 3; Names, 6; Sentences, 33. 

66. Same— Must be in handwriting of recorder or judge advocate. See Designation of 

Accused, 4. 

67. Numbers in sentence. See Sentences, 47. 

68. Numbers, loss of. See Numbers, Loss of. 



572 SENTENCES. 

69. Officers— The policy of the department does not favor a sentence involving solely 

loss of pay in the case of commissioned officers other than commissioned warrant 
officers. C. M. O. 48, 1915, 5. See also Pay, 100. 

70. Old sentences— "To be fined five dollars and shot to death but recommended to 

mercy." G. C. M. Rec. 116, July 16, 1812. 
" To be privately advised to be more circumspect." G. C. M. Rec. 111. 

71. Pay, forfeiture of. See Pay. 

72. Same — Remission by discharge. See Bad-conduct Discharge, 3. 

73. Paymaster General— The following sentence was confirmed by the President: "The 

court thereupon sentenced the said Paymaster General * * * 'to be dismissed 
from the position of Chief of the Bureau of Provisions and Clothing in the Depart- 
ment of the Navy. To be suspended from rank and duty as a pay inspector, on 
furlough pay, for three years, and to retain his present number in his grade during 
that period.'" C. M. O. 8, 1886, 33. 

74. Paymaster's clerk— While not necessary sentence of dismissal was confirmed by 

President. C. M. O. 24, 1915; 26, 1915. See also Paymaster's Clerks, 8, 9. 

75. Physical condition of accused. See Clemency, 41. 

76. Phraseology — In one case the department remarked — The sentence was not expressed 

in the phraseology outlined in the Forms of Procedure, 1910, p. 42. The members of 
the court, as well as the judge advocate, should always remember that "while the 
phraseology used [in the Forms of Procedure] need not be absolutely adhered to" 
(Forms of Procedure, 1910, p. 3) it should not be departed from unless there is a very 
good reason for doing so. C. M. O. 6, 1916, 4. 

77. President— May remit sentences, etc. See Pardons; President of the United 

States. 

78. Public reprimand. See Public Reprimand. 

79. Rank — Of accused , when an officer or marine, should be included in sentence. See 

Sentences, 33. 

80. Rating— Of accused when an enlisted man of the Navy should be included in sentence. 

See Sentences, 33. 

81. Reconsideration of. See File 26258-302, May 29, 1912. See also 16 Op. Atty. Gen. 104. 

82. Reduction in rating. See Reduction in Rating. 

83. Remission or mitigation after final action. See Convening Authority, 62. 

84. Remission of unexecuted loss of pay— By discharge. See Bad-Conduct Dis- 

charge, 3. 

85. Remitted — Sentence should be remitted only as an act of clemency toward the ac- 

cused . File 26287-560, Sec. Navy, Aug. 3, 1910. See also File 26251-7004:2, Sec. Navy, 
Mar. 31, 1913; Allotments, 6, 7; Clemency, 53; Pay, 23. 

86. Remitted in toto— To avoid a miscarriage of justice. C. M. O. 37, 1915, 1. 

87. Restoration to duty in sentence — Court has no power to sentence an accused to be 

released and restored to duty upon the expiration of the period of confinement. 
C. M. O. 60, 1892; 41, 1900; 37, 1909, 3. See also Court, 168. 

88. Restriction. See Restriction. 

89. Reviewing authority— Court usurps prerogatives of reviewing authority by adjudging 

an inadequate sentence. See Court, 164. 

90. Same— Reviewing authority of a summary court-martial disapproved the proceedings 

but approved the sentence. See Reviewing Authority, 20. 

91. Revision— Sentence adjudged in revision after dissolution of court is of no legal effect. 

See Court, 68; Sentences, 37. 

92. Same— Sentence, even if adhered to, should be in the handwriting of the judge ad- 

vocate. See Revision, 18; Sentences, 52. 

93. Revoked or removed — The sentence of an officer who was convicted by general court- 

martial of negligence which caused the loss of his ship, was later "removed in con- 
sequence of the good conduct" of said officer during the War of the Rebellion. G. O. 
101, Mar. 11, 1869. See also G. O. 102, Mar. 11, 1869, and G. O. 104, Mar. 13, 1869, in 
which sentences were "revoked." In these cases pay which had been forfeited was 
restored. 

94. Revoked— By the Secretary of the Navy, after having been promulgated. G. O. 104, 

Mar. 13, 1869; 113, Mar. 18, 1869; 102, Mar. 11, 1869; 101, Mar. 11, 1869. 

95. Secretary of the Navy— May place an officer on furlough if he is not dismissed when 

found guilty of vulgar and indecent acts and associations. C. M. O. 49, 1915, 27. See 
also Officers, 106. 

96. Same— Power over sentence. See Secretary of the Navy, 50-57. 



SENTENCES. 573 

97. Severe — Proceedings and finding approved but, in view of unanimous recommenda- 

tion to clemency and the fact that the sentence appeared to be a severe one, the 
sentence was disapproved. C. M. O. 87, 1907, 1. 

98. Setting aside. See Setting Aside. 

99. Signatures of members. See Authentication of Sentences, 1; Court, 175. 

100. Signed— The sentence of a summary court-martial shall be signed by all the members 

and therecorder. C. M. 0. 15, 1910, 12. SeeCoxrRT, 175, where signature was omitted. 

101. Solitary confinement. See Solitary Confinement. 

102. Statutory. See Statutory Sentences. 

103. Stripped of insignia. See C. M. O. 7, 1888, 1; An. Rep., J. A. G., 1908, p. 21. 

104. Substitution — After a case has been finally acted on the reviewing authority is not 

authorized to change a sentence involving reduction to "seaman gunner" to reduction 
to "seaman" as this would be substituting a different sentence for that imposed by 
the court, and would not be authorized. C. M. O. 49, 1914, 6. See also Seaman 
Gunners, 4. 

105. Same— Court not to substitute punishment of different nature from limitations— A 

court is not to sentence an officer to punishment which is of a different nature than 
that prescribed by the limitations, as restriction to ship or station, loss of pay, sus- 
pension from duty, in the case of drunkenness where the limitation for this offense 
is "to lose ten (10) numbers." C. M. O. 21, 1910, 17; 1, 1911, 3. 

106. Summary courts-martial. See Summary Courts-martial, 86-92. 

107. Suspended for one year— Action withheld for one year. C. M. O. 3, 1909. 

108. Suspension from duty. See Suspension from Duty. 

109. Suspended twice by President— And then remitted. See Dismissal, 33. 

110. Typewritten — The finding and sentence of deck courts and courts-martial should never 

be typewritten, but should be in the handwriting of the deck court officer, recorder or 
judge advocate. C. M. O. 24, 1909, 3. See also Handwriting, 9; Revision, 35, 36. 

111. Uniformity— Where the same summary court-martial adjudged sentences in two 

different cases for practically identical offenses which varied greatly, the department 
stated: " Since it is obvious that the best interests of discipline and justice can not be 
served if the equality of punishments is disregarded, the department directed the con- 
vening authority in these cases to exercise care in the future that sentences of summary 
courts-martial conform to an established schedule before final approval and publi- 
cation. C. M. O. 10, 1911, 8. 

112. Same — Courts-martial should use prescribed forms of sentences in order to secure 

uniformity. C. M. O. 37, 1914; 52, 1914. 

"Undue leniency is as hurtful to the proper conduct of a military command as 
undue severity and should be carefully avoided." File 20971-19, Sec. Navv. Aug. 
20, 1909. 

113. Undesirable sentences. See Public Reprimand, 5; Sentences, 55,56; Suspen- 

sion from duty, 4,5,9-13. 

114. Unique sentence. C. M. O. 31, 1881, 2. 

115. Unusual sentence. C. M. O. 27, 1887, 16. 

116. Vote on— Divulging. See Oaths, 47. 

117. Warrant officers (commissioned). See Warrant Officers, 29, 30. 

118. "Year" — Where word "year" is used, year is construed to mean 12 calendar months. 

File 26504-24, J. A. G., Nov. 3, 1908. 

SENTINELS. 

1. Abuse of — Officer tried by general court-martial. See Countersign, 1: Officers, 

110; Sentinels, 18. 

2. Condition when posted— The department mitigated the sentence of a sentinel who 

had been found guilty of "Leaving post before being regularly relieved" because 
"of the fact that a doubt exists as to the condition of the accused for dut v at the t ime 
he was posted as a sentry." C. M. O. 69, 1S97, 2. 

3. Corporal of the guard— Tried by general court-martial for assaulting and striking a 

general court-martial prisoner. C. M. O. 4, 1896. 

4. Countersign. See Countersign. 

5. Disciplinary Barracks. See Sentinels, 13. 

6. Disrespect— Officer tried by general court-martial. Sec Countersign, l; Officers, 

110; Sentinels, 18. 

7. Drunk— Sentinel posted when drunk. See Sentinels, 2, 15, 16. 

8. Escaping prisoners— Duty of sentinel. See Manslaughter, 9; Prisoners, 19. 

9. Firearms— Use of. See Firearms, 2. 



574 SENTINELS. 

10. Guard duty. See Manslaughter. 9; Sentinels, 13. 

11. "Interfering with a sentinel "—Enlisted man tried by general court-martial on 

this charge. C. M. O. 102, 1903, 2. 

12. Marine Corps. See Manslaughter, 9; Sentinels, 13. 

13. Naval prisons— "A sentinel in charge of prisoners or detentioners shall be instructed 

that his most important duties are to preserve the peace of the prison or detention 
system, prevent the escape of prisoners or detentioners, and observe their performance 
of the work assigned. He shall maintain a soldierly bearing and shall, as far as 
practicable, use military commands in formation, marching, halting, breaking ranks, 
and in controlling prisoners or detentioners." (Manual for the Government of United 
States Naval Prisons and Detention Systems, 1916, Sec. 90, pp. 18-19.) 

14. Officer— Tried by general court-martial on charge of "conduct to the prejudice of good 

order and discipline" for disrespect and abuse of a sentinel. See Countersign, 1; 
Officers, 110; Sentinels, 18. 

15. Posted when intoxicated— The accused was intoxicated when posted as a sentinel- 

Was charged with "Drunkenness on post"— The department stated: "It appears 
from the evidence that the accused was * * * when posted as a sentinel; and. 
while such fact does not render him any the less liable for the offenses of which he has 
been found guilty, the department considers that it does to some extent relieve his 
delinquencies of their flagrancy." (See C. M. O. 62, 1894; 89, 1895.) C. M O 21 
1897, 2. See also C. M. O. 136, 1900; 142, 1900; 80, 1898. 

16. Same— Should not be allowed to mount guard when intoxicated. C. M. O. 136, 1900 - 

142, 1900. 

17. Prisoners— Duty of sentinel when prisoner attempts to escape. See Manslaughter, 9. 

18. Respect for— An officer having been found guilty of "Conduct to the prejudice of good 

order and discipline," the specifications thereunder alleging that he abused the senti- 
nel and in general acted prejudicial to good order and discipline , the department stated 
in part: " The department deems it proper to call attention to the remarkable fact that 
an officer of his age, rank, and an experience in the service covering a period of 23 years 
should display such ignorance of the duties of sentinels, such lack of respect for the 
sacred character of the countersign, and such a thorough disregard of the proper 
treatment of inferiors charged with responsible duties." C. M. O. 95, 1893, 3. 

SENTRIES. See Sentinels. 

SEPARATE OR DETACHED BATTALIONS. 

1. Deck courts— Convening of by commanding officers of. See Deck Courts, 10-14: 

Summary Courts-Martial, 22. 38. 

2. Summary courts-martial— Convening of by commanding officers of. See Summary 

Courts-Martial, 22, 38. 

SEPARATE OR DETACHED COMMAND. 

1. Deck courts— Convening of by commanding officers of. See Deck Courts, 10-14: 

Summary Courts-Martial, 22, 38. 

2. Summary courts-martial— Convening of by commanding officers of. See Summary 

Courts-Martial, 22, 38. 

SERVICE ON NAVAL COURTS-MARTIAL. See Court, 170. 

SERVICE RECORDS. See also Descriptive Lists; Evidence, Documentary, 19; 
Letters, 16; Reports of Deserters Received on Board. 

1. Acquittals— The commanding officer of a naval vessel is not authorized to make entry 

upon the enlistment record of an enlisted man who has been acquitted of the offense 
charged against him by a duly constituted court, as such action would be contrary 
to R-624 (2). File 26287-587. 

2. Charged with " Desertion "—"An entry upon the enlistment [service] record that 

a man deserted upon a certain date is not legal evidence of desertion by him, but is 
evidence only that he is charged with desertion." File 26251-1963:1, J. A. G., Aug. 17, 
1910, p. 7. Service Records, 16, overrules above. 

3. Same— Where an accused was found guilty of "Desertion," the only evidence intro- 

duced being "his enlistment record and descriptive list and an entry in the log of 
the U. S. R. S. Vermont, the former stating that the accused had run at Newport. 
July 7, 1901, from the U. S. S. Alabama, and the latterthat he was brought on board 
the U. S. R. S. Vermont August 10 following." The accused made no defense and the 
court found him guilty of the charge of desertion. "The documents introduced in 



SERVICE RECORDS. 575 

evidence afforded no proof whatever of the commission of the offense to which they 
related, but merely of the fact that the accused was charged with having left the 
Alabama and was delivered on board the Vermont, wholly insufficient to establish the 
offense of desertion or that of a lesser offense, absence without leave." C. M. O. 156, 1901. 
See also C M. O. 52, 1902. Service Records, 16, overrules above. 

4. Collateral matters. See Reports of Deserters Received on Board, 4. 

5. Copy of appended to record— Certified copy, not original, appended to record. 

CM. 0.31, 1896,3. See also Evidence, Documentary, 36, 45; Service Records, 23. 

6. Deck courts— Entries in service record of convictions by deck courts must be authen- 

ticated by the signature of the commanding officer. See Deck Courts, 21. 

7. Definition. See Service Records, 15. 

8. Departure from service — Service records are inadmissible in "Desertion " cases except 

to prove departure from the service. C. M. 0. 37, 1909, 9; 47, 1910, 9. But see Service 
Records, 16, which modifies above. 

9. Desertion. C. M. 0.31, 1896, 2; 155, 1900; 76, 1901; 74 1Q03, 3;28 ; 1904, 3;30, 1910, 6. 

10. Same -"It is manifest that the court erred in admitting the extract from the enlist- 

ment record of the accused as evidence of the offense, viz, ' Desertion,' therein referred 
to . The entry in question amounted to nothing more than a report against the accused 
by his commanding officer, charging him with 'Desertion.' Moreover, there was 
apparently no attempt made to identify the document introduced, as should have 
been done, by the oral testimony of its proper custodian. Even had this been done, 
however, the enlistment record would still have been not properly admissible, as the 
officer who signed the original entry * * * was available as a witness, and should 
have been called to testify in the premises." C. M. 0. 146, 1901, 1. See also CM. O. 
156, 1901, 1, 2. But see Service Records, 16. 

In a case disapproved because the evidence was insufficient to convict the depart- 
ment stated: "It is not manifest to the department why the judge advocate did not 
produce the enlistment [service] record of the man and read the usual entries con- 
tained thereon, showing the date and place from which the original absence took 
place." CM. 0.37, 1909, 5. See also C M. O. 42, 1909, 16. 

Where the judge advocate introduced and the court received in evidence an extract 
from the accused's service record setting forth the fact that he had disposed of his 
uniform and effects, the department held: That, "this is not evidence, but an ex parte 
statement of the commanding officer of the vessel to which [th e accused] was attached, 
based probably upon reports made to him; and the court erred in receiving it in evi- 
dence." "It has been held by the department that an enlistment [service] record, 
introduced in a trial for desertion, is only evidence to show the departure of the 
man from his station. Any attending circumstances which may have been recorded 
in the enlistment [service] record must be proved by confrontation of the accused 
with the witnesses against him." C M. O. 47, 1910, 9. Overruled by C. M. O. 31, 
1915, 14-16, contained in Service Records, 16. 

11. Evidence— The statement of age contained in the service record is evidence of such 

a character as may be accepted by naval courts-martial. C M. O. 94, 1905, 1. 

12. Fraudulent enlistment— The accused was charged with "Fraudulent enlistment," 

and the judge advocate introduced the service record of the accused. Counsel for 
accused objected to the introduction of this service record of the accused in his fraudu- 
lent enlistment on the ground that it was irrelevant. Hdd; Pending the introduc- 
tion of prima facie proof that the accused and the alias were one and the same person 
this sendee record was clearly irrelevant and the court erroneously overruled the 
objection to its introduction. C. M. O. 6, 1913, 3; see also C. M. O. 94, 1905, 1. 

13. Intent, proof of— An entry upon an enlistment record properly identified is always 

admissible in evidence. Such an entry is no proof, however, oi intent , as ? the specific 
intent to abandon the naval sen ice or terminate the pending contract or enlistment. 
File 3047-04, J. A. G. But S( 6 SERVICE RECOHD8, 16, which modifies above. 

14. Same — "An entry upon the enlistment record that a man deserted upon a certain 

date is not legal evidence of a desertion by him, but is evidence only that he is charged 
with desertion." File 26251-1963:1. But see Service Records, 16, which modifies 
above. 

15. Nature of— An enlistment record is an "aripinal document" and "is the official his- 

tory of the man's service, including his conduct record, during the period of such 
enlistment, expressly required bv law and regulations to be kept for purposes ol 
record." C. M. O. 106, 1903, 4. See also C. M. O. 74, 1903, 2; Letters, 10. 

50756°— 17 37 



576 SERVICE RECORDS. 

16. Same- " Service Records" and "Reports of Deserters Received on Board" are such 

documents as may, when properly identified and produced, be admitted in evidence. 
The general rule is that it is sufficient if the record is kept in the discharge of a public 
duty and is a convenient and appropriate mode of discharging that duty in order 
that it may be admitted as a public document. Thus, a record has been held admis- 
sible if it was kept by the direction of superior officers and in accordance with the 
rules and practice of the office. (17 Cyc, 307.) The entries made in service-record 
books and official certificates are not in the nature of private entries or memoranda, 
since they are made by public officers, whose duty it is to record truly the facts stated 
therein; and it is not necessary that the entries be made personally by a public officer 
himself, if the entries are made under his direction by a person authorized by him. 

The most frequent use of documentary evidence before courts-martial arises in 
cases of trial for "Desertion," and there has been some confusion in applying the 
rules of evidence in this regard. The following rules apply to the use of "Service 
Records" and "Reports of Deserters Received on Board" as evidence before naval 
courts-martial: 

The mere entry of desertion in a "Service Record," with entries of attendant cir- 
cumstances, is not sufficient to prove the gravamen of the offense. While admissible, 
it is only 'prima facie evidence, open to explanation, and to rebutting testimony, and 
while it would, in the absence of rebutting testimony, show that the accuse'd was 
attached to and serving on board the vessel, or stationed at the navy yard or naval 
station indicated, that he was found to be absent at a certain time, that his absence 
continued for 10 days or more, and that it was not satisfactorily explained, it would 
not be of sufficient weight to establish the fact that he had intended permanently 
to abandon the service, that he was possessed of the animus non revertendi when the 
officer made the entry. Yet the entries mentioned are admissible evidence of the 
stated facts that were within the knowledge of the officers who made the entries, and 
are by no means without probative force in determining whether the offense of 
"Desertion" has been committed. 

The entries on a " Report of Deserter Received on Board " are entitled to considera- 
tion when such report has been properly received in evidence, to prove the date and 
place of return from unauthorized absence of the party mentioned therein, together 
with his condition at the time, the state of his wearing apparel, etc. (See File 
26504-142, J. A. G-, May 18, 1912.) 

The question of animus non revertendi must, of necessity, always be a conclusion 
from certain facts, and is for the court to determine from all the evidence in the case. 

The foregoing (introduction of "Service Record" and "Report of Deserters Re- 
ceived on Board") "present applications in various instances of the well-established 
rule that official reports and certificates made contemporaneously with the facts 
stated, and in the regular course of official duty, by an officer having personal knowl- 
edge ofthem, are admissible for the purpose of proving such facts." (U. S. v.Corwin, 
129 U. S., 385; U. S. v. McCoy, 193 U. S., 602.) They are not conclusive evidence of 
the facts stated therein, and rebutting testimony may be offered ; but they may well 
establish the case for the prosecution, if an accused fail to produce sufficient evidence 
in rebuttal thereof to overcome the prima facie case so made out against him. 

"Manifestly the design and meaning of this rule is not to convert incompetent and 
irrelevant evidence into competent and relevant evidence simply because it is con- 
tained in an official communication." (TJ. S. v. Corwin, 129 U. S. ? 385-386.) Should 
the officer who made the entries be testifying under oath, his assertion that an accused 
had deserted would be excluded as inadmissible; he could only be heard to state 
facts within his knowledge, such as the fact that the accused had been absent without 
leave, had disposed of his clothing before so absenting himself, etc., from which the 
court would conclude whether such facts would warrant a finding of guiity on a 
charge of "Desertion." The officer's assertion that an accused had deserted would 
itself imply the existence of primary and more original and explicit sources of infor- 
mation. 

The facts necessary to make out a case of "Desertion" may be proved not only by 
the records, but also'by parol evidence. Where records, as the above, are introduced 
as evidence, it is not necessary or required that the officer who made the entries be 
shown to be unavailable by reason of death, absence, or other circumstances of such a 
nature. C. M. O. 31, 1915, 14-16. See also Evidence, Documentary, 19. 

17. Not best evidence. See Reports of Deserter Received on Board, 3. But see 

Service Records, 16. 



SERVICE RECORDS. 577 

18. Same— An entry on an enlistment record is admissible in evidence for certain pur- 

poses; if practicable, the person making the entry should be called. C. M. O. 156, 
Sept. 20, 1901. See also C. M. O. 74, 1903, 3. But see Service Records, 16. 

19. Summary courts-martial— Before a summary court-martial record is transmitted 

to tbe Judge Advocate General, a brief transcript shall be taken therefrom (except 
in case of acquittal) and furnished to the officer of the deck and to the executive 
officer for entry, respectively, in the ship's log and upon the service record of the 
man concerned. This transcript shall comprise the date and nature of the offense 
proved and the punishment adjudged as approved by the convening and reviewing 
authority, with the date of such approval. If the said punishment be disapproved 
or mitigated subsequently by the department, an entry to that effect shall be made 
as soon as notice thereof is received. If bad -conduct discharge, or both, be included 
in the sentence, the final action in either case shall be similarly entered. The tran- 
script and entries shall be authenticated as soon as made by the signature of the 
commanding officer. (R-624(2).) C. M. O. 6, 1909, 4. 

20. Plea in bar held valid— No entry should be made on service record of a summary 

court-martial if he is not brought to trial by reason of his plea in bar of trial being 
adjudged valid by thecourt. File 26287-1677:1, J. A. G., Aug. 22, 1913. Seealso Plea 
in Bar, 9. 

21. Previous convictions— An entry of conviction by a deck court on an enlistment 

record must be authenticated by the signature of commanding officer. File 27217-12. 

22. Procedure— In introducing in evidence. See Evidence, Documentary, 36, 45; 

Service Records, 23. 

23. Record of Proceedings— The accused was tried before a general court-martial on the 

charge of " Desertion" and pleaded "not guilty." In the course of the trial the judge 
advocate went on the stand as a witness for the prosecution as the legal custodian of 
the current enlistment record of the accused, and it was noted that the procedure 
followed was at variance with that laid down in the Forms of Procedure, 1910, page 
32; that there was no notation on the record of proceedings that a copy of such docu- 
mentary evidence was appended to the record, nor in fact was a copv appended. 
(Forms of Procedure, 1910, p. 32; C. M. O. 36, 1914, p. 7.) C. M. O. 41, 1914, 4. See 
also Evidence, Documentary, 19. 

24. Same — Extracts read from sendee record as evidence should not be embodied in the 

record of proceedings. A certified copy should be appended. G. C. M. Rec. 29934; 
30041. See also Service Records, 23. 

25. Witnesses— Service record of a witness, improper as evidence of credibility. C. M. O. 

47, 1910, 4-5. 

SESSIONS OF NAVAL COURTS-MARTIAL. See Court, 126, 127, 171-174. 

SET OFF. • 

1. Discharge— Where a man is discharged upon expiration of enlistment without having 
been fully checked, the amount of a summary court-martial sentence, because of 
sufficient pay not having accrued to satisfy the forfeiture, the amount of such sentence 
which remained unchecked at date of discharge can not be set off against pay coming 
due under a subsequent enlistment. His discharge from the previous enlistment 
operated as a remission of the unexecuted portion of the forfeiture. Comp. Dec. 
Apr. 6, 1914, 158 S. and A. Memo. 3035; File 7(557-241, June 26, 1914. 

SETTING ASIDE. 

1. Accused — Requested findings and sentence be set aside on grounds that he had not 

received a public trial. C. M. O. 6, 1915, 6. See also Judge Advocate, 105. 

2. Deck court." See Deck Courts, 58. 

3. Findings set aside— No arraignment on specification. C. M. O. 17, 1915, 1-2. 

Findings set aside in a fleet case by the Secretary of the Navy, as specifical ion did 
not support the charge. C. M. O. 4, 1916. See also FRAUD, 5 

4. Findings and sentence— Of a general court-martial set aside. C. M. O. 14, 1914. 3. 

5. Proceedings— Of a general com t-martial set aside as null and void. CM. 0.4, 1914, 11. 

See also C. M. O. 33, 1914, 5. 

6. Proceedings, findings, and sentence— Of a general court-mart ial set aside as illegal. 

C. M. O. 4, 1916, 3. 

7. Same— Of a general court-martial set aside. C. M. O. 78, 1905, 1. 



578 SETTING ASIDE. 

8. Proceedings, findings, and sentence once set aside can not be suspended— 

The Acting Secretary of the Navy set aside the proceedings, findings, and sentence 
of a certain general court-martial and directed the discharge of the accused from the 
naval service in accordance with the recommendation of a board of medical survey. 
Thereafter the Bureau of Navigation recommended that action on the proceedings, 
findings, and sentence in the case be suspended. Held, that "the Secretary of the 
Navy having once acted upon the case and set aside the proceedings, findings, and 
sentence of the court, his powers in the premises were thereby exhausted and there 
is now no authority in him to revoke such action and hold the sentence in abeyance. 
(17 Op. Atty. Gen. 302.)" File 26251-4424:7, J. A. G. 

9. Revocation— Of action of setting aside. See Setting Aside, 8. 

10. Secretary of the Navy— "The Secretary of the Navy may set aside the proceedings, 

or remit or mitigate, in whole or in part, the sentence imposed by any naval court- 
martial convened by his order or bv that of any officer of the Navy or Marine Corps." 
(A. G. N. 33; sec. 9, act Feb. 16, 1909; 35 Stat., 621.) 

" The department reviews the record of all naval courts-martial, with a view to 
determining whether or not any action shall be taken under the authority of the 
above-quoted provision" of law. C. M. O. 26, 1912, 4. See also Secretary of the 
Navy, 27-30, 32-37, 54. 

11. Sentence— Of a general court-martial set aside. C. M. O. 78, 1905, 1; 4, 1916. See also 

C. M. O. 33, 1905, 1. 

12. Same — That part of a sentence involving confinement set aside, as sentence did not 

provide for forfeiture of pay. C. M. O. 5, 1914. 3. 

13. Same— Of a summary court-martial set aside as illegal. C. M. O. 22, 1915, 5-6. Seealso 

Bread and Water, 4. 

14. Summary court-martial — Proceedings and sentence set aside. C. M. O. 5, 1914, 4; 

33, 1914, 6-8. 

15. Same— Sentence set aside. C. M. O. 5, 1916, 6. 

16. Trial— The trial, conviction, and judgment on the merits in the case was set aside by 

the department and the penalty remitted. C. M. O. 9, 1893, 13. See also C. M. O. 
18, 1897, 5. 

" SHALL AND MAY." See Statutory Construction and Interpretation, 77. 

SHERIFF. 

1. Rewards for deserters. See Rewards, 2. 

SHIPS. See Vessels. 

SHIP'S LOG AS EVIDENCE. C. M. O. 15, 1910, 5. 

SHIP'S STORE. 

1. Comptroller of the Treasury— Is without jurisdiction to render a decision as to the 

legality of proposed expenditures from profits from sales by ship's stores in the Navy 
in view of the provision of the act of June 24, 1910 (36 Stat., 619), which provides that 
such profits should be accounted for to the Bureau of Supplies and Accounts. File 
26254-1759:2. See also Comp. Dec. Apr. 28, 1915. 

2. Public money— The profits from sales made by ship's stores, as authorized bv act of 

June 24, 1910 (36 Stat., 619), are not public monev within the meaning of R. S. 3648. 
(Comp. Dec. Aug. 11, 1914; File 26254-1571:2.) See also File 26254-1759, Apr. 20, 1915. 

3. Venereal prophylactic— Sale of prohibited. See Venereal Prophylactic. 

SHIP'S TAILOR. 

1. Deserted. C. M. O. 6, 1915, 9. Seealso Deserters. 11. 

2. General court-martial— Tried by. C. M. O. 24, 1879. 

SHIPKEEPERS. 

1. Naval Militia. See Naval Militia, 34, 39-41. 

SHOPPING ARTICLES AS EVIDENCE. C. M. O. 1, 1911, 5; 12, 1911, 3; 1, 1912, 5. 

SICK LEAVE. 

1. Promotion while on. See Retirement of Officers, 33. 

SICK LIST. 

1. Drunkenness— While on sick list. See Drltnkenness, 76, 84. 

2. Promotion— Of officer while on sick list. See Retirement of Officers, 33. 



SMALLPOX. 579 

S ICKNE S S . See also Diseases. 

1. Definition of "disease" as used in the act of August 29, 1915 (39 Stat. 580) 

The term "disease" as used in this act does not include "injury." (Compt. Dec, 
Nov. 23, 1916). File 7657-398:2. 

2. Excuse— Sickness has never been regarded as an excuse for abandoning station before 

being regularly relieved because, if indisposed, could be regularly relieved. C. M. O. 
25, 1910, 2. 

SIGNALS. 

1. English Morse code — Adopted for visual signaling in and between the Army and 

Navy. G. O. 345, Apr. 3, 1886. 

2. Typhoon signals. C. M. O. 7, 1915. 

SIGNAL BOOKS. 

1. Battle signal books — Officers tried by general court-martial for loss of. See Battle, 

1; Confidential Publications, 1,3. 

2. Regulations— Force and effect as. See Regulations, Navy, 14. 

SIGNALMEN. 

1. Naval Reserve Corps. See Naval Reserve, 3. 

SIGNATURES. 

1. Forging. C. M. O. 26, 1915. 

2. Members of courts-martial. See Authentication of Sentences; Members of 

Courts-Martial, 12, 24, 48. 

SILENCE AS EVIDENCE OF A CONFESSION. See Confessions, 22. 
SILVER SERVICE. See Gifts to Government, 5. 
SIMPLE ACQUITTAL. See Acquittal, 27. 
"SINGLE ACT OF HAZING." See Hazing. 

SINGLE IRONS. See also Double Irons; Irons. 

1. Sentence — Among other things the court included in its sentence the use of single irons. 

CM. 0.233, 1902. 

2. Same — That part of the sentence which provided for his confinement in single irons 

disapproved as being unnecessary and unusual for so long a period as six months. 
C M. O. 83, 1894, 2. 

SINGLE WITNESS. See Evidence, 114. 

SKYLARKING. 

1. Death of enlisted men. See Line of Duty and Misconduct Construed, 49, 71; 
Manslaughter, 13 (p. 351). 

SLANDER. 

1. Malice— While malice is an essential ingredient of libel or slander or, as it is sometimes 

expressed, is the gist of the action therefor, yet the law presumes or implies malice 
from the publication of words actionable per se, whether written or oral, and no actual 
malice is essential to recovery. (See25Cyc. 256, 371, 372.) File 26251-12159, Sec. Navy, 
Dec. 9, 1916, pp. 15-16. 

2. Scandalous conduct tending to the destruction of good morals— Enlisted men 

tried by general court-martial for slander under charge of. C. M. O. 35, 1915, -1. 

SLEEPING ON WATCH. 

1. Officer— Tried by general court-martial. C. M. O. 43, 18S4; 34, 1912. See also G . C. M. 

Rec. 6250; 8821; 13186. 

2. Specific intent— Not required. See Intent, 2. 

SLEEPING UPON HIS WATCH. 

1. Officer— Charged with. C. M. O. 25, 1910. 

2. Officers-of-the-deck— Found guilty of. See Officer-of-the-Deck, 12-14. 

SMALLPOX. 

1. Medical officer— Tried by general court-martial for neglecting his duty by failing to 
notify his commanding officer of the prevalence of an epidemic of smallpox in a city 
to which the ship was destined to sail, which information was contained in Public 
Health Reports officially in his possession, etc. C. M. O. 35, 1914, 



580 SOLICITOR. 

SMOKER. See also C. M. O. 8, 1909; 51,1910; Drunkenness, 41. 

1. Clemency— Officer ordered to attend a "smoker." See Clemency, 37. 

2. Officers— Tried by general court-martial for disobeying an order to attend the "United 

States Atlantic Fleet smoker" at Hotel Astor, New York City. C. M. O. 36, 1912. 

SMUGGLING. 

1. "Attempting to smuggle liquor"— Enlisted men charged with. C. M. O. 31, 1888. 

2. Same— Enlisted man charged with, under "Conduct to the prejudice of good order and 

discipline." C. M. O. 42, 1915, 2. 

3. "Smuggling liquor and drunkenness"— Enlisted man tried by general court- 

martial. C. M. O. 85, 1S89. 

SODOMY. 

1. Accomplices. See Aiding and Abetting, 7; Sodomy, 6. 

2. Aiding and abetting. See Aiding and Abetting, 7. 

3. Assauit with intent to commit sodomy. G. C. M. Rec. 30935. 

4. Charges investigated by department— For cases where an accused charged sodomy 

as the cause of his trouble for which on trial, and such charges investigated by the 
department. G. C. M. Rec. 23015; 23595; 23S45. 

5. Common law. See Sodomy, 15. 

6. Confessions— For cases where confessions of accomplice were admitted to prove the 

charge. See Confessions, 7, 23. 

7. Corpus delicti. See Corpus Delicti, 4. 

8. Department's purpose to severely punish offenders— It is the department's 

purposes that nothing be left undone to bring to justice persons in the Navy who are 
guilty of sodomy; and when such offenders are convicted by court-martial it is the 
intention that they shall be rigorously dealt with, to the end that the naval service 
may not be demoralized as must surely follow lenient treatment of such cases. File 
26251-6020:11, Sec. Navy, July 7, 1913. 

9. Drunkenness— For cases disapproved account drunkenness. G. C. M. Rec. 21287. 

10. "Frame-up"— As a defense. File 26251-10496. 

11. Lectures— Recommended, "That the commandants and commanding officers of the 

naval training stations be instructed to cause lectures or talks to be given to appren- 
tices under training, setting forth the nature of such offenses, [sodomy, sexual per- 
version, etc.] the liability of all parties concerned, and the fact that the department 
insists upon severe punishment being meted out in such cases." File 26251-ll479a, 
J. A. G., Feb. 18, 1916. 

12. Miscellaneous remarks— For cases having miscellaneous remarks. See G. C. M. 

Rec. 23527; 23695; 23694; 23693. 

13. Prior acts— Evidence of prior acts of familiarity or prior offenses of the same character 

are admissible. File 26251-6020:11, Sec. Navv, July 7, 1913. 

14. Proof of. See File 26504-136; 10374-02, J. A. G.. Dec. 6, 1902; 21 J. A. G. 479-481; 

G. C. M. Rec. 10486; Kinnan v. State, 86 Neb. 234; 125 N. W. 594; Ann. Cas. 335. 

15. Punishment by statute and common law— Sodomy was punishable at common 

law by death, sometimes by burning and sometimes by burying alive. Punishment 
is, however, almost universally regulated by statute in the several states, which very 
generallv impose long terms in state prisons, in some instances for life. (36 Cyc. 506.) 
File 26251-6020:11, July 7, 1913. 

16. Scandalous conduct tending to the destruction of good morals— Where the 

evidence is not sufficient to establish the crime of sodomy the court should find the 
accused "guilty in a lesser degree than charged, guilty of scandalous conduct tending 
to the destruction of good morals," where such rinding is warranted bv the facts 
adduced. See File 26504-136. See also File 231-03; 22 J. A. G. 161, holding that it 
is competent for the court to find the accused guilty of the included offense oi at- 
tempting to commit the crime charged should the evidence not be sufficient to 
sustain a finding of guiltv of the charge. 

17. Statute— No statute applicable to Navy defining "sodomy." G. C. M. Rec. 10486. 

SOLICITOR. 

1. Attorney General— Requests for opinion of. See Attorney General, 16, 17. 

2. Combining— Offices of the Judge Advocate General and Solicitor. See Judge Ad- 

vocate General. 38. 

3. Counsel— Solicitor in the office of the Judge Advocate General was assigned as associate 

and assistant to a judge advocate. See Counsel, 49. 

4. Duties. See File 26S27-3:21. 



SOLICITOR. 581 

5. History— Solicitor's office. See Judge Advocate General, 18. 

6. Investigation— Authorized to administer oaths. See Oaths, 41. 

7. Statutes not relating to personnel— Interpretation of. See Judge Advocate 

General, 20. 

8. Supreme Court— The solicitor in the office of the Judge Advocate General has repre- 

sented the United States in the Supreme Court. U. S. v. Smith, 197 V. S. 386; File 
469, 1904. See also Counsel, 49, 52. 

"SOLICITOR AND NAVAL JUDGE ADVOCATE GENERAL." See Judge Advo- 
cate General, 18. 

SOLICITOR, NAVAL. See Judge Advocate General, 18. 

SOLITARY CONFINEMENT. 

1. Bread and water— If sentence involves bread and water, solitary confinement must be 

included. See Bread and Water, 4; Confinement, 11. 

2. Definition. See Confinement, 12. 

3. Certificate of medical officer. See Confinement, 5. 

-1. Sentence — Inasmuch as a month may contain more than thirty days, a sentence of 
"solitary confinement in double irons on bread and water for one month," etc., does 
not conform to article 30, paragraph 4, Articles for the Government of the Navy, 
which authorizes summary courts-martial to impose a sentence of solitary confinement 
not exceeding thirty days, and records containing a sentence of one month are there- 
fore returned for revision. S. C. M. Rec. No. 43097, Sept. 15,. 1904. 

SPANISH WAR. See War With Spain. 

SPECIAL DISBURSING OFFICERS. See also Disbursing Officers; Pay Officers. 
1. Hospital ship. See File 7039-279, J. A. G., Jan. 18, 1913. 

SPECIAL ORDERS. 

1. Judicial notice. See Statutes, 10. 

SPECIALISTS. 

I. Prisoners— Examination by. See Prisoners, 32. 

SPECIFIC INTENT. See also Intent. 

1. Absence, unauthorized. See Absence from Station and Duty After Leave 

Had Expired, 13; Absence from Station and Duty without Leave, 20. 

2. Assault. See Assault, 23, 24. 

3. Assault and battery. See Assault, 23. 

4. Assaulting with a deadly weapon and wounding another person in the serv- 

ice. See Assault, 24; Assaulting With a Deadly Weapon and Wounding 
Another Person in the United States Naval Service, 3. 

5. Burglary. See Burglary, 6. 

6. Definition. See Intent, 49. 

7. Desertion. See Desertion. 

8. Drunkenness— Effect of drunkenness on specific intent. See Drunkenness. 49-52. 

9. Duelling. See Duels, 2. 

10. Embezzlement. See Embezzlement, 15, 16. 

II. Forgery. See Forgery, 1. 

12. Fraudulent enlistment. See Fraudulent Enlistment, 23, 27. 

13. Larceny. See Theft, 21. 

14. Murder. See Murder, 6, 13. 

15. Perjury. See Perjury, 15. 

16. Robbery. See Intent, 2; Robbery, 7, 8. 

17. Statute or common law — Where by statute or common law a specific intent is es^en- 

tial to a crime, it must be proved. See Common Law, 11; Desertion, 77. 
IS. Stealing. See Theft, 7, 21. 
19. Theft. See Theft, 21. 

SPECIFICATIONS. See Charges and Specifications. 

SPECTATORS. 

1. Presence — During (rial by general court-marl ial. See Court, 126. 

2. Warned — By court not to' talk of trial. (.«. C. M. Rec, 30485, p. 304. 



582 STAFF OFFICERS. 

SPEEDY TRIALS. 

1. Deck courts— Whenever practicable, the trial shall take place within 48 hours after 

the offense is committed. Delay in the trial of the accused may be considered in 
adjudging sentence. (R-507.) 

2. General courts-martial — The department is desirous of reducing by every practicable 

means the period of time between the arrest of an accused person for trial and the pro- 
mulgation of his sentence. To this end, steps have been taken to reduce to a min- 
imum delay in the various operations required in the department in such cases; and 
each successive step in handling cases before they arrive at the department should 
similarly be expedited. 

If it is decided by the competent officer that the accused shall be brought to trial 
before a general court-martial, "the court shall be assembled for that purpose as 
soon as the nature of the case and the interests of the public service will allow." 
(Navy Regulations, 1913, R-1408 (1).) General courts-martial should "meet as soon 
as practicable after each case is received and not delay the trial of any one person 
until a number of cases have accumulated." (File 2G504-111.) Judge advocates 
should not construe the order of the Secretary of the Navy, dated May 4, 1911, re- 
quiring that "reports, with the reasons for delay of trial, be' made in each case where 
the accused is not brought to trial within 10 days after the charges and specifications 
are received by the judge advocate" (File 20504-111), as authority to unnecessarily 
delay trials. (See C. M. O. 10, 1915, p. 6, with reference to "Speedy trials.") File 
26504-111:329, Sec. Navy, May 4, 1915; C. M. O. 20, 1915, e 7-8. 

3. Summary courts-martial— In reviewing a summary court-martial record the senior 

officer present in his remarks, dated February 4, 1915, stated in part: " It is noted that 
the offense was committed on January 5, 1915, that the specifications were approved on 
January 12, 1915, the trial occurred on January 18, 1915, and the proceedings were 
approved by the convening authority on January 31, 1915. Too much time has 
been consumed in this case." The record, which was received at the department on 
February 25, 1915, disclosed the facts to be as above stated. 

The Navy Regulations provide that when an officer empowered to convene'sum- 
mary courts-martial decides after investigating an accusation against a petty offic:r 
or person of inferior rating that the accused should be tried by a summary court-mar- 
tial, he shall refer the case to such court-martial, with the least possible delay. (Navy 
Regulations, 1913, R-602 (1).) Also, the accused shall, as soon as practicable after it 
has been decided to bring him to trial, be furnished with a copy of the specifications 
preferred against him. (Navy Regulations, 1913, R-607 (1).) 

From the above it will be seen that an accused should always receive a speedv trial 
and the record forwarded without undue delay. " The certainty of prompt punish- 
ment is more conducive to discipline than punishment deferred long after the offense." 
(Navy Regulations, 1913, R-1404 (3).) These regulations thus conform to the spirit 
of the constitutional provision for speedy trials. (Constitution, Art. VI of Amend- 
ments.) C. M. 0. 10, 1915, 6. 

SPIRITUOUS LIQUORS ON BOARD SHIP. 

1. Acting third assistant engineer— Was found guilty of "Violation of the act of Con- 
gress prohibiting the introduction of spirituous liquors on board vessels of the United 
States Navy" by a general court-martial. G. O. 44, Dec. 7, 1804. 

SQUADRON COMMANDERS. 

1. Convening authority— Of a general court-martial. See Convening Authority, 
28, 30. 

"SQUEEZE." 

1. Defense— "Squeeze" as a defense. C. M. O. 69, 1903, 2-3. See also G. C. M. Rec. 27900. 

ST. ELIZABETH. See Government Hospital for the Insane. 

STABBING. 

l. Assault and battery. See Assault, 25. 

STAFF OFFICERS. 

1. Command— In other corps. See Hospital Ships, 1. 

2. Same— The staff is subordinate to the line in matters of command. See Command, 18. 

3. Controversy— Between line and staff. See Command, 19. 

4. General court-martial— Trial of staff officers. See Court, 34. 

5. Marine officers— Precedence of. See Precedence, 14-18. 



STAFF OFFICERS. 583 

6. Same— Promotion of. See Promotion, 180, 181. 

7. Naval officers. See Promotion, 182-184. 

8. Professor of mathematics— Rank of. See Professors of Mathematics. 

9. Promotion— Advanced in rank but not in grade. See Commissions, 9. 

10. Same— Promotion by selection. See Promotion, 172, 182, 183, 184; Promotion by 

Selection, 10. 

11. Trial of— By general courts-martial. See Court, 34. 

12. Warrant officers— Carpenters and chief carpenters, sailmakers and chief sailmakers, 

pharmacists and chief pharmacists, are classed as staff officers. See Command, 11, 21. 

STARE DECISIS. 

1. Definition— Store decisis et non quicta movcre — To adhere to decided cases and not dis- 

turb matters established. File 26260-1392, pp. 2-3. See also Words and Phrases. 

2. Law should be settled permanently— It is almost as important that the law should 

be settled permanently as that it should be settled correctly. Its rules should be 
fixed deliberately and adhered to firmly, unless clearly erroneous. Vacillation is a 
serious evil. File 5252-68, J. A. G., May 15, 1915, quoting Oilman v. Philadelphia 
(3 Wall., 724). 

3. Statutory construction — According to the doctrine of stare decisis, where a statute 

has been construed by the Navy Department in a previous administration and such 
construction is not clearly erroneous, the matter should be regarded as settled so far 
as the law is concerned, and the previous construction should not be disturbed. File 
5252-68, May 15, 1915. 

STATE. 

1. Civil authorities. See Civil Authorities; General Order No. 121, Sept. 17, 1914; 

Jurisdiction, 118. 

2. Decisions. See Secretary of the Navy, 39. 

3. Embezzlement— State laws not applicable. See Embezzlement, 28. 

4. General courts-martial of States— Officers and enlisted men of naval service appear- 

ing before, as witnesses. See General Order No. 121, Sept. 17, 1914, 23. 

5. Same — On board vessels of the Regular Navy. See Naval Militia, 38; Jurisdiction, 39. 

6. Interference — With Federal instrumentalities. See Constitutional Law, 5-8; Juris- 

diction, 118. 

7. Statute— Violation of by a Naval officer — "This accused, upon his own admission and 

the undisputed evidence, has been guilty of a serious offense, criminal libel, for which 
he may be tried in the civil courts [of the State] in addition to his offense against 
discipline, for which he has been brought to trial by court-martial. The jurisdiction 
of the State and Naval authorities over his offense is concurrent, and conviction by 
the one could not oust jurisdiction of the other." File 26251-12159, Sec. Navy, Dec. 9, 
1916, p. 22. See also Jeopardy, Former, 11, 24, 45, 46. 

8. Vote— Jurisdiction over right to vote, etc. See Voting. 

STATE SECRETS. 

1. Privilege — Privilege of refusing to divulge State secrets when testifying. See Evi- 
dence, 82 (p. 223.) 

STATEMENTS MADE IN PRESENCE OF ACCUSED. 

1. Evidence— One of the witnesses for the prosecution, a chief master-at-arms, testified as 
to the unauthorized absence of the accused from said ship and his delivery on board 
by a police officer. He added "the police officer stated that the accused gave himself 
up." The record proceeds as follows: 

" The court here objected to the admission of the last sentence, referring to the state- 
ment of the police officer, as hearsay evidence, and it was not allowed as part of the 
evidence." 

In answer to a further question the above-named witness, who had testified that 
he "did not find any effects belonging to the accused, " stated that such fact did not 
indicate to his mind that the accused had disposed of them before he left the ship, 
as on account of the large number of men on board, and the Inadequate facilit ies for 
stowing bags, "It was very difficult to find any part icularbag belonging to absentees." 

While it does not certainly appear from the above-quoted evidence thai the state- 
ment of the policeman in question was made in the presence of the accused, ii would 
seem to be a reasonable inference therefrom thai such was the ease, and if so, said 
statement was clearly admissible and should not have been ruled out. C. M. O. 
214, 1902. 



584 STATEMENT OF ACCUSED. 

STATEMENT OF ACCUSED. 

1. Accused as witness— The accused, after pleading guilty to " Desertion," took the stand 

and stated that at the time he left the ship he was mentally unbalanced. This state- 
ment is obviously inconsistent with his plea of guilty. C. M. O. 49, 1910, 11. See 
also C. M. O. 2, 1905; Desertion, 75. 

The accused, after pleading guilty to "Desertion," took the stand and stated that 
"the reason why I pleaded guilty [to " Desertion"] was because I have always known 
about after 10 days being desertion; so I pleaded to ' Desertion' that way." C. M. O. 
10, 1912, 4. 

The accused after pleading guilt y of being drunk on post after having been regularly 
posted thereon, took the stand and stated that he did not remember relieving the 
sentry, and that he did not remember being drunk on post. C. M. O. 5, 1911, 4. 

Where accused pleads " guilty" and then goes on the witness stand and gives 
testimony which is inconsistent with such plea of "guilty," the court should advise 
him to withdraw his plea of "guilty" and enter one of "not guilty." C. M. 0. 6, 
1908, 5. 

2. Accused should be informed — That his statement is not evidence. See Statement 

of Accused, 17. 

3. Affidavits— Should not be included as part of the statement of the accused. See 

Affidavits, 7. 

4. Clemency— If the court places credence in the statement of the accused (after he has 

pleaded guilty), as appears to be the case from the wording of a unanimous recom- 
mendation to clemency, then before arriving at a finding the defense should have been 
opened up and the accused called upon to produce witnesses to that effect or informed 
of his privilege of taking the stand and so testifying under oath, subject to a rigid 
cross-examination. C. I\f. O. 21, 1913, 5. 

The recommendation to clemency should not be inconsistent with the accused's 
plea of "guilty." C. M. O. 30, 1910, 5. 

5. Clerk or stenographer available — When a clerk or stenographer is available the 

statement of the accused, undergoing trial by general court-martial, should be set 
forth in the record ofproceedingsyerfea^'TO and not recorded "in substance." C. M. O. 
16, 1912, 3. 
G. Contents of written statement. See Statement of Accused, 35. 

7. Court— Procedure of court when statement of accused is deemed inconsistent with 

his plea of "guilty." See Statement of Accused, 25. 

8. Court should close to examine— The court should close for the examination of the 

written statement of the accused, and the record should show that the court was 
closed therefor. C. M. O. 28, 1910, 6; 31, 1910, 3. 

9. Disapproval— Of summary court-martial case because statement of accused was incon- 

sistent with his plea of "guilty." See Statement of Accused, 20. 

10. Same— Of general court-martial case for same reason. See Statement of Accused, 

16. 

11. Same. See C. M. O. 12, 1897; 46, 1900; 53, 1901; 167, 1901; 182, 1901; 185, 1901; 23, 1904, 1 ; 

2, 1905, 3; 22, 1905, 1; 23, 1905, 4. 

12. Disapproval though not inconsistent— A statement submitted by accused who 

has pleaded "guilty" of desertion although not inconsistent with his plea may be 
of such a nature as to justify the rejection of the plea and a trial of the case on its merits. 
In this case the accused stated that he was suffering from a disease, and his father 
being a physician, he went home for treatment and surrendered in order that he might 
finish his enlistment and go home with a clean name. C. M. O. 54, 1905. 

13. Disrespectful— The accused "presented to the court a written defense so disrespectful 

that the court could not receive it." Accused was censured. G. 0. 157, May 24, 1870. 

14. Evidence— Statement of accused is not evidence. Any averments or facts embraced in 

the statement may, of course, be proved by testimony, but unless so proved it is not 
within the province of the court to take judicial cognizance of them in determining 
the culpability or innocence of the accused. (R-792 (4)). C. M. O. 42, 1909, 9; 41, 1914. 

15. Evidence in extenuation— Inconsistent with accused's plea of "Guilty" — The ac- 

cused pleaded "guilty" to "Desertion." The testimony of a witness in extenuation 
was inconsistent with the accused's plea as was the statement of the accused and the 
recommendation of the members to the clemency of the revising power. The depart- 
ment accordingly disapproved the proceedings, findings, and sentence. C. M. O. 
30, 1910, 4-5. See also Clemency, 20. 



STATEMENT OF ACCUSED. 585 

16. Evidence— Inconsistent with plea of guilty— Upon the second charge, namely, "Drunk- 

enness," the accused pleaded "Guilty." During the trial a witness, called by the 
accused with reference to the charge of "Robbery," was asked the question, "when 
the accused was up before you on the night in question, was he drunk, disorderly, 
or creating a disturbance , " to which the witness answered " No." The judgead vocate 
did not cross-examine this witness, and the record shows that the court did not desire 
to question him. The witness for the defense did not state at what hour the accused 
was brought before him, and his testimony was, therefore, not necessarily contra- 
dictory of the plea of the accused that he was guilty of "drunkenness" at the time 
specified. Nevertheless, this testimony, received without any attempt being made 
to reconcile it with the plea of the accused, was on its face sufficiently inconsistent 
with that plea to make it the duty of the court immediately to instruct the accused 
that he might withdraw his plea of "guilty" and substitute therefor the plea of "not 
guilty," and if he persisted in his plea of "guilty" to direct the entering of a plea of 
"not guilty" to the charge of "Drunkenness," and the proceeding with the trial by 
the introduction of evidence, which the judge advocate was informed existed, to prove 
the allegations set forth in the specification under that charge. (C. M. O. 30, 1910, 
p. 4; see also Index-Digest, 1914. p. 40.) 

Inasmuch as the finding of "Guilty" on the charge of "Drunkenness" was dis- 
approved by the convening authority because of the above irregularity and the ends 
of justice were thereby defeated through the failure of the court and judge advocate 
to properly conduct the trial, and without reference to the question of whether or 
not the above irregularity was properly regarded as a fatal defect, attention is directed 
in this connection to the special care which the members and judge advocate of a 
court should give to matters in which either the testimony or the statement of an 
accused may appear at variance with his plea. G. C. M. Rec. No. 31776; C. M. O. 
9, 1916, 7-8. 

17. Ex parte— The accused should be informed that the court can not attach evidentiary 

weight to the accused's ex parte statement; that he has the right to take the stand 
and testify under oath and also to produce witnesses in his behalf to testify as to the 
existence of the deplorable conditions alleged (destitution of family, desire to remain 
in service etc.), and that he should call such witnesses whenever practicable. C. 
M. O. 10, 1913, 7. 

18. Inconsistent with accused's plea of guilty— If the accused pleads guilty and then 

makes a statement inconsistent with his plea it becomes the duty of the court to 
instruct the accused in the premises that he might withdraw his plea of "Guilty" 
and substitute therefore the plea of "Not guilty," and if he persisted in his plea' of 
"Guilty" to direct that the plea of "Not guilty" be entered and then proceed with 
the trial as if the plea had originally been "not guilty." C. M. O. 42, 1909, 8; 47, 1910, 8; 
49, 1910, 7, 11; 14, 1910, 10-11; 23, 1910, 5; 30, 1910, 4; 5, 1911, 4-6; 10, 1912, 4; 1, 1914, 4-5; 
5, 1914, 6; 9, 1914, 3; 25, 1914, 3-4; File 26287-2821, Sec. Navy, March 3, 1915. 

19. Same— Where the accused pleads guilty and then makes a statement to the court 

setting forth facts incongruous with his plea (as in desertion, disclaiming the intent 
to abandon the service), the statement, rather than the plea, should be considered 
as the intelligent act of the accused, and in such a case the court will properlv counsel 
the accused to plead not guilty or direct such plea to be entered, and proceed to a t rial, 
the judge advocate introducing his proof precisely as under an ordinary plea of guilty. 
C. M. O. 42, 1909, 8. See also C. M. O. 158, 1897; 54, 1905, 2. 

20. Same— The department disapproved the summary court-martial proceedings and 

sentence because the statement of the accused was inconsistent with his plea of guilty. 

The accused pleaded guilty to having unlawfully in his possession one pair "of 
trousers and later made the following statement: "* * * brought the pair of pants 
in the bungalow and gave them to me: they were too small for him. The pants were 
all dirty and I thought they were cast off, as * * * said that ho found them on 
the dump." 

Upon the submission of this statement, it became the duty of the court to instrucl 
the accused in the premises that he might withdraw his plea of "guilty," and sub- 
stitute therefor the plea of "not guilty, " and if ho persisted in his" plea of "guilty " 
to direct that the plea of ''not guilty" be entered and then proceed with the trial as 
if the plea had originally been "not guilt v." C. M. O. 1, 1914, 4. 
-Tt 



Same— The accused was charged with "Assaulting and striking his superior officer 
while in the execution of the duties of his office," the specifications alleging a willful 
and malicious assault. The accused pleaded "guilty" but in Ids statement alleged 



586 STATEMENT OF ACCUSED. 

in substance, that he was so drunk that he did not know what he was doing when he 
made the assault charged against him. The department held that this statement 
was "apparently inconsistent with the plea of the accused." C. M. O. 47, 1910, 8. 

22. Same— The accused pleaded guilt}- to the charge of "Theft." The specification alleged 

that he did feloniously take, steal, and carry away two rifles, and did then and there 
appropriate them to his own use. Later on in the proceedings he makes a statement . 
which was unobjected to and received by the court, to the effect that he was so much 
under the influence of intoxicating liquor that he had nocontrol over his actions, and 
that he had not the slightest intention of taking the rifles in question. 

While the statement of the accused is not evidence, nor should it be considered 
as such, yet when contrary to his plea it devolves upon the court to instinct the ac- 
cused in the premises that his plea be changed to conform to his statement. 

The statement made by the accused in this case conflicted with his plea, he having 
pleaded guilty to having feloniously taken, stolen, and carried away two rifles and 
appropriated the same to his own use. 

It thus became the duty of the court, when the accused in this case, after having 
pleaded guilty to "Theft," submitted a statement contradictory to this plea— at 
least contradictory to that portion embracing the gist of the offense, to have brought 
these conflicting elements to the attention of the accused, and then, if he held to the 
facts set forth in his statement, to have directed the judge advocate to substitute the 
plea of "not guilty" to the particular charge, and to have proceeded with the case by 
the introduction of evidence, if such existed, to prove the specification. C. M. O. 
42, 1909, 9. 

23. Same — The accused after pleading "guilty"to "Desertion, "submitted a written state- 

ment the tenor of which was plainly inconsistent with his plea of "guilty, "inasmuch 
as he expressly denied having intended permanently to remain away at the time he 
absented himself. The court accepted both the plea and the statement and found 
the accused guilty. In cases as this, thecourt, if it lias reason to believe that the state- 
ment is made in good faith, should follow the procedure outlined in Statement of 
Accused, 25. C. M. O. 107, 1899, 1. 

24. Same— The accused having pleaded guilty to "Desertion " offered the following written 

statement which was read for him by the judge advocate: 

" While admitting the offense of deserting, I do so only because I can find no evi- 
dence to bring before the court except my own statement to disprove the charge. 
I never had any intention of deserting the service permanently and absented myself 
as charged only because I wanted to get off the ship I was on, as I felt and knew "that 
I would be in trouble continually by remaining on board the Columbia. " 

This statement was manifestly inconsistent with the plea of guilty made by the 
accused to the third charge, namely desertion, yet both were admitted by the court. 
No evidence was adduced before the court and the finding on each of the specifications 
in this case was "proved by plea," and on each of the charges was "guilty." 

The finding on the charge of "Desertion" and specification thereunder was dis- 
approved. C. M. O. 84, 1904, 3. 

25. Same— Upon the submission of a statement which is deemed inconsistent with the 

accused's plea of "guilty," it becomes the duty of the court to instruct the accused 
that he might withdraw his plea of "guilty," and substitute therefor the plea of "not 
guilty," and if he persists in his plea of "guilty " to direct that the plea of "not guilty " 
be entered and then proceed with the trial as if the plea had originally been "hot 
guilty." C. M. 0. 1, 1914, 4-5; 5, 1914, 4-6; 9, 1914, 3; 25, 1914, 3-4. 

2ti. Investigation — The accused should be informed by the judge advocate that before 
giving any credence to his statement (where accused states his family are destitute, 
etc., or he desires to continue in service) the department will cause a full investigation 
to be made into the actual conditions claimed. 

The judge advocate should embody in the record the full names and addresses of 
the alleged dependent persons so as to facilitate as much as practicable the investi- 
gation which will be instituted by the department. C. M. O. 10, 1913, 5. 

27. Same — An accused stated on the witness stand that he had attempted to surrender 
at the naval station, Honolulu, but was not taken up and claimed that the executive 
officer would not take him in and advised him not to surrender, but wait until he 
arrived at San Francisco. 

The department, following its usual custom as announced in C. M. O. No. 10, 1913, 
caused an investigation to be made of the statements of the accused and found them 
to be false. C. M. O. 20, 1913, 5. 



STATEMENT OF ACCUSED. 587 

28. Nature of— The statement of the accused has a threefold function: (a) As a modifica- 

tion of the plea, which must be considered by the court; (b) As a summing up and 
closing argument for the defense, which may be considered by the court; (c) As a 
plea for leniency, which may not be considered by the court except in recommending 
the accused to the clemency of the revising authority. C. M. O. 41, 1914, 4. 

29. Same — The accused shall be at liberty to make a statement in writing, or, if an official 

stenographer be present, orally, either in person or by counsel. This statement, if 
written, he shall submit to the court for inspection before it is publicly read, and, if 
contains anything disrespectful, the court may prevent that part from being read; 
but the whole shall be appended to the proceedings, or recorded as a part thereof, if 
the accused desires it, and he shall be held responsible for the same. (R-792 (2)). 
See Statement of Accused, 34, 39. 

30. Oral statement— Only the substance of the oral statement of the accused is inserted 

in the record. If no stenographer qualified to take an oral statement is present, it 
should be reduced to writing and appended to the record of proceedings of the general 
court-martial. C. M. O. 26, 1910, 8. 

31. Out of court— Statements made by accused out of court. C. M. O. 211, 1902. See also 

Confessions. 

32. Procedure of court. See Statement of Accused, 25. See also C. M. O. 22, 1905, 1. 

33. Record of proceedings— Copy of statement of- accused appended. See G. O. 44, 

Dec. 7, 18G4; C. M. O. 1, 1894, 3. 

If written defense is made in general court-martial cases it is appended. In both 
summary and general court-martial cases oral defense may be entered in the body of 
the record or reduced to writing and appended. 

34. Right of accused to make a statement^Since it is the right of the accused to make 

a statement, either orally or in writing, if he waives this right, the fact that it was 
accorded him, and not taken advantage of, should be affirmatively indicated upon 
the record of proceedings of the general court-martial. C. M. O. 49, 1910, 5. 

35. Scope of— The court objected to certain parts of the written statement of accused " on 

the ground that they implied a criticism of on the discipline and morale of the Oregon, 
which in the absence of witnesses, it was impossible to refute." The accused then 
"desired to omit the above mentioned paragraphs," and his statement was read 
aloud, excepting the paragraphs in question. 

" While the propriety of the subject matter and form of an accused man's written 
statement or defense is for the court to decide upon, in its discretion," the court should 
not be unduly severe in restricting the accused as above indicated. "Such action 
appears not to have worked injury, however, as the sentence imposed was the usual 
one awarded for the offense "of which the accused pleaded guilty. CM. 0.223, 1902,2. 

36. Set aside. C. M. 0. 12, 1897; 159, 1897, 2; 167, 1901. 

37. Summary court-martial— Neither written defense nor argument nor any protracted 

oral defense should be admitted, but the substance of any oral statement may be 
entered on the record or appended. 

38. Sworn to — It is irregular and improper to permit the statement of the accused to be 

sworn to and that it is an affidavit adds nothing to its legal effect. C. M. O. 22, 1896. 
See also Affidavits. 7. 

39. When submitted— The statement of the accused should not be submitted until ajtcr 

the defense has closed. C. M. O. 23, 1910, 7. See also C. M. O. 75, 1898. 

40. Written statement— Submitted to court. C. M. O. 47, 1910, 8; 49, 1910, 5; 23, 1910, 5. 

See also Statement of Accused, 8, 13, 33, 34. 

STATEMENT OF ACCUSED IN WRITING TO COMMANDING OFFICER 
PRIOR TO TRIAL BY GENERAL COURT-MARTIAL. See CONFESSIONS, 9, 

STATEMENTS OF ACCUSED WHEN OFFENSE IS BEING INVESTIGATED. 

See Confessions, 24. 

STATEMENTS OF COUNSEL. 

1. Evidence— Statements of counsel should not bo given weight as evidence. See Counsel, 
51. 

STATUTES. 

1. Advisory statutes. See Advisory Statutes. 

2. Breach of— Alleging a breach of a statute in specifications. See Charges and Speci- 

fications, 94. 

3. Common law— Construction of statutes with reference to principles of common law. 

etc. See Common Law, 9. 



588 STATUTES. 

4. Constitutionality of — " To warrant a court in declaring unconstitutional a law passed 

by Congress, the defect of legislative power must be of the most plain and indisputable 
character, " and that "the fact that a law of Congress has been in course of execution 
for many years, and has been acquiesced in during that time, is a strong reason why 
the courts, especially those of a subordinate character should not decide the same 
to be unconstitutional." (U. S. v. Mackenzie, 30 Fed. Cas. No. 18313, syllabi.) 
"Long acquiescence in the act is of itself sufficient evidence of the right of Congress 
to pass it." (Butler v. White, 83 Fed. Rep., 581.) File 26254-1451-11, J. A. G., April 
12, 1915, p. 7. 

5. Construction of. See Statutory Construction and Interpretation. 

6. Criminal statutes. File 26516-49, J. A. G., June 13, 1911. See also Statutory 

Construction and Interpretation, 15, 8S-92. 

7. Definition—" Congress has no right to enact as a law that which will be ineffectual. 

It can not enact advice or counsel. It must make laws that are rules of action, not 
'expressions of will, that may or may not be followed.' Counsel is a matter of per- 
suasion, law is a matter of injunction; counsel acts upon the willing, law upon the 
unwilling also. (Blackstone's Commentaries , 44. ) If, then, this will be an injunction 
commanding the President to appoint, it is a usurpation; and if it be only counsel, it 
is without the essential element of a law; and Congress can enact nothing but that 
which is to have the full vigor and effect of a law." (18 Op. Atty. Gen. 27.) File 
28687-4:1. 

8. Derogation of appointing power. See Officers, 96; Statutory Construction 

and Interpretation, 2s. 

9. Drafting statutes—" The drafting of legislation in apt language so that intent and 

result may harmonize is a special art acquired only by long experience in drafting and 
interpreting laws. In order that the draft may accurately express the desired mean- 
ing and, at the same time, not repeal or undesirably affect existing law, it is essential 
that the draftsman possess a thorough knowledge of all existing statutes which might 
be affected by the proposed law, an intimate knowledge of the subject matter with 
which he is dealing, and be thoroughly familiar with the accepted canons of statutory 
interpretation. Otherwise the result will most probably be incomplete and inade- 
quate legislation, not infrequently involving a conflict with or repeal of important 
laws which it was not desired to modify. The necessity for a knowledge of the funda- 
mental principles of the rules of interpretation and construction of statutes on the 
part of one drafting a bill needs no argument; if the construction which the draftsman 
of a proposed law places upon it can not be sustained by the established canons of 
statutory interpretation, it is manifest that his bill, if enacted into law, will not only 
not accomplish the object which he intended, but may even accomplish something 
which is actually very undesirable." 

"Even the most skillful draftsman of legislation can not guarantee that his product 
will be free from doubtful questions, for written language is, at best, only an imperfect 
medium for the expression of ideas." An Rep., J. A. G., 1916, pp. 17, 18. See also 
File 28687-14, J. A. G., Dec. 14, 1916, p. 4. 

10. Judicial notice — A naval court-martial takes judicial notice of the constitution, public 

statutes, proclamations, the power of the President and Executive Departments, 
matters of public history, the Navv Regulations, general and special orders and 
circulars of the department. File 26251-12159, Sec. Navy, Dec. 9, 1916, p. 21. See also 
Fraud, 5. 

The particular provision of law violated by an accused is not properly to be " charged 
or proved" but must be judicially noticed by courts-martial. File 26251-12159, Sec. 
Navy, Dec. 9, 1916, p. 21. 

11. Limitations— Statute of Limitations. See Statute of Limitations. 

12. Penal statutes. See Statutes, 6; Statutory Construction and Interpretation, 

15,88. 

13. Remedial statutes. See Remedial Laws. 

14. Sentences. See Statutory Sentences. 

STATUTE OF LIMITATIONS . 

1. Absence from United States— The question of a man's absence from the United 

States is pertinent in determining whether or not he is amenable to trial under A. G. 
N. 61. C. M. O. 27, 1913, 13, cited in File 26516-213, J. A. G., June 27, 1916. Seealso 
Absence, 14. 

2. Burden of proof. See Statute of Limitations, 12, 20. 



STATUTE OF LIMITATIONS. 589 

3. Charges and specifications — The time of the offense must be alleged so as to bring 

the offense within the statute. See Charges and Specifications, 92; Findings, 27, 
32, 35. 

4. Defense— Statute of Limitations is a matter of defense. See Statute of Limitations, 

6, 12. 20. 

5. Desertion— The statute of limitations is never a bar to the apprehension of a deserter 

from the naval service, nor is it a bar to his trial unless the deserter chooses to plead 
same; and in the latter event the question whether the statute applies, that is whether 
the accused has been absent from the United States at any time since his desertion 
and prior to the expiration of the statutory period, or whether there has been any 
other "manifest impediment" to his trial, is a question for determination in the 
first instance by a court-martial, the same as other questions of fact raised at the 
trial. (File 26516-206.) It would be difficult, perhaps impossible, to lay down any 
general rule whereby to determine in all cases under what facts and circumstances 
the accused may be deemed to be beyond the jurisdiction of a court-martial. This is 
a matter which must needs be left in each case, to the judgment of the court itself 
upon the particular facts and circumstances appearing therein, subject to revision 
by the proper authorities. (See C. M. O. 27, 1913, 17.) File 26516-206, J. A. G., Mar. 
29, 1916. See also C. M. O. 39, 1901, 2; 28, 1902; File 26516-197, J. A. G., Nov. 6, 1915. 

6. Same — "As will be seen from a reading of the above quoted statute, it does not begin 

to run until the expiration of the term for which the deserter enlisted. The effect 
of this proviso is to make the period six years from the date of the deserter's enlist- 
ment. As will be further seen, the time a deserter may have been absent from the 
United States or not amenable to justice by reason of some other manifest impedi- 
ment is excepted from the period of limitations. In view of those facts, and of the 
further fact that the plea of the Statute of Limitations is a plea in bar, which must be 
decided on its own facts, in each particular case, it is impossible for the department, 
in the absence of more specific data, to inform you whether or not the persons you 
have in mind are protected from prosecution by the Statute of Limitations. It may 
be stated, however, that the length of time which may have elapsed since a person 
deserted does not, in itself, protect such a person against arrest or the preferring of 
charges against him, the Statute of Limitations being simply a defense of which an 
accused may avail himself when brought to trial." File 26516-137, Sec. Navy, July 
9, 1914. 

7. Same— Officers. See Desertion, 91; Statute of Limitations, 15. 

8. Same— Plea in bar sustained by court. See Statutes of Limitations, 16. 

9. Same — Begins to run—" The limitation begins to run, in case of desertion by an en- 

listed man (unless the offender has previously surrendered himself or been appre- 
hended, or unless, by reason of some manifest impediment, he is not then amenable 
to justice) from the last day of the term for which he enlisted." (15 Op. Atty. Gen., 
162.) File 26287-458, (548) J. A. G., July 2, 1910, p. 3. 
10. Same— An electrician first class, United States Navy, was charged with "Knowingly 
and wilfully misappropriating and applying to his own use property of the United 
States furnished and intended for the naval service thereof '* (between the dates of 
July 1, 1908, and Aug. 1, 1908); and with deserting from the Navy September 27, 
1908 (remaining in desertion until delivered by the civil authorities Dec. 27, 1912). 

The accused pleaded the statute of limitations and the president of the court trans- 
mitted to the department an extract from the proceedings of the court stating that 
the accused had submitted a plea in bar of trial under the statute of limitations which 
the court had decided was a valid one. 

The department returned the extract from the proceedings to the court with the 
following remarks: 

The accused in this case was charged with "Knowingly and wilfully misappro- 
priating and applying to his own use property of the United States furnished and 
intended for the naval service thereof," at the Navy wireless station, Cape Blanco, 
Oreg., between July 1 and August 1, 1908; and with deserting from the Philadelphia 
at the navy yard, Puget Sound, Wash., September 27, 1908, remaining in desertion 
until delivered by the civil authorities December 27, 1912. The accused pleaded the 
statute of limitations and in support thereof introduced only one witness, which 
witness testified that he knew nothing whatever of the whereabouts of the accused 
from July, 1908, to November 26, 1910, on which last named date the accused entered 
the employ of witness at Scotia, Cal., under the name of * * * and continued in 
witness's employ until taken into custody upon the above mentioned charges. Upon 
these facts the court sustained the pica of the accused as valid. 



590 STATUTE OF LIMITATIONS. 

The following principles applicable to this case are well settled, and are briefly 
stated for the consideration of the court: 

The limitation of prosecution under article 61, Articles for the Government of the 
Navy, commences to run in favor of an accused on the day that his offense is com- 
mitted, and continues to run during a period of two years next ensuing, unless in the 
meantime the order for his trial is issued; or he flees from justice; or some other 
manifest impediment prevents his being amenable to justice during said period. 

At the expiration of two years after committing an offense the accused becomes 
absolutely immune from prosecution, unless he waives the benefit of the statute, or 
one of the exceptions contained therein prevents its operation in his case. Exemption 
from prosecution once acquired under the statute can not be forfeited by subsequent 
conduct (Greene v. U. S- 154 Fed., 424); and on the other hand the running of the 
statute once having been stopped (as, for example, by fleeing from justice) its benefit is 
forever lost to the accused and can not be regained (U. S- 0. White 5 Cranch (C. C.) 
116; 28 Fed. Cas. 568, No. 16677). 

Applying the foregoing principles to the present case, Charge I, the result would 
be that, immediately upon the expiration of two years from the date of the offense 
alleged therein (that is about July 1, 1910), the accused became absolutely and per- 
manently entitled to the benefit of article 61, Articles for the Government of the Navy 
unless he had in the meantime forfeited the benefit of said article, in which latter 
event he was deprived of its protection for all time. It will thus be seen that the whole 
question at issue refers to the status of the accused during the two years following the 
commission of the alleged offense. If during that period his conduct was such as 
to entitle him to the benefit of the statute he could not lose the exemptionfrom prose- 
cution so acquired by thereafter concealing himself or fleeing from justice; and, on 
the other hand, if at any time during that period he forfeited the benefit of the statute 
by concealing himself or fleeing from justice he could not theraf ter regain its protection 
by any subsequent conduct. 

In the present case, as above stated no evidence was introduced by the accused 
concerning his whereabouts during the two years following the time alleged in the 
specification of Charge I, and accordingly he has failed to support the plea to that 
'charge. 

With reference to Charge II, it is noted that no evidence whatever was introduced 
to show the date on which the accused enlisted in the iNavy, or the date on which 
his enlistment expired. Accordingly, as there was nothing to show the date on 
which the statute of limitations (art. 62, A. G. N.) commenced to run upon this 
charge, it was not practicable for the court to dttermine upon the evidence whether 
the order for the trial of the accused upon said charge was issued within a period of 
two years after the expiration of his enlistment. A fortiori, it could not be deter- 
mined upon the evidence whether the accused was amenable to justice during the 
statutory period when it was not shown by the evidence on what date the statute 
commenced to run, or whether the period of limitation had expired. 

The fact being that the accused failed to introduce any evidence whatever upon 
which the court could determine whether or not prosecution in this case is barred, 
the department directs that the court reconsider its finding upon the plea in bar 
interposed by the accused to both of the charges preferred against him; and, if it is 
decided by the court to revoke its finding and overrule the plea of the accused, it is 
further directed that the court proceed with the trial. 

Should the court on reconsideration overrule the plea of the accused and proceed 
with the trial, the defense would be entitled to avail itself of the statute of limitations 
by evidence in support of the plea of not guilty, in which event the judge advocate 
would have the right to introduce evidence showing that the accused concealed 
himself or fled from justice at some time during the statutory period. (U. S. v . Cook, 
17 Wall. 179.) There is accordingly no danger of any injustice being done to the 
accused by proceeding with the trial, but on the contrary he is afforded a further 
opportunity to show that he is entitled to the protection of articles 61 and 62, Articles 
for the Government of the Navy, if such is the case; and, if the court upon the trial 
should be of opinion that the evidence shows that he was amenable to justice during 
the entire statutory period, this would be sufficient grounds for an acquittal. 

In its further consideration of this case, the court should take judicial notice of 
the fact that it is the official duty of officers of the Navy to take all practicable steps 
for the apprehension of deserters, and of the requirements as to offering rewards, 
notifying the civil authorities at the home of the deserter, etc. In the absence of 
evidence to the contrary, the law presumes that official duties are properly performed. 



STATUTE OF LIMITATIONS. 501 

The court should also take judicial notice of the location of Sc otia, Cal., or other place 
in which the accused may have resided while in desertion, the remoteness and inac- 
cessibility of such place, transportation facilities between it and the outside world, 
and facts of a similar nature which may be of importance in connection with the ques- 
tion whether the accused endeavored to conceal himself or flee from justice, even 
though he may have been known under his true name in such out-of-the-way place 
which he selected as his residence in November, 1910. The court should also take 
into consideration the evidence showing that, when the accused went to work in. 
Scotia, Cal., after expiration of the period of limitations provided by article 61, Articles 
for the Government of the Navy, he did not inform his employer that he had pre- 
viously served in the United states Navy, and had never been discharged therefrom. 

The court, after consideration of the department's letter, decided to proceed with 
the trial. No evidence being available to prove the first charge, the court acquitted 
the accused of said charge; and further evidence being introduced with reference to 
the second charge, the court found that the statute of limitations applied to said 
second charge, and accordingly acquitted the accused thereof. 

Article 62, Articles for the Government of the Navy, which fixes the limitation 
for proceedings in case of desertion as two years from expiration of enlistment, con- 
tains two exceptions: (a) Absence from the United States, (b) "Some other manifest 
impediment" by reason of which the accused "shall not have been amenable to 
justice within that period." 

Article 61, Articles for the Government of the Navy, which fixes the limitation for 
proceedings in the cases of general offenses also contains two exceptions which it will 
be noted differ somewhat from article 62 , viz: " Unless by reason of having absented 
himself, or of some other manifest impediment, he shall not have been amenable to 
justice within that period." 

"With reference to the latter article, it will be noted that the absence which prevents 
the operation of the statute of limitations does not necessarily have to be an absence 
from the United States, but only such an absence as may render the accused not 
"amenable to justice." Construing a similar statute relating to offenses committed 
by persons in the A rmy, it has been held by the Judge A d vocate General of the Army: 
" By the absence referred to in the original article m the term— 'unless by reason of 
having absented himself— is intended, not necessarily an absence from the United 
States, but an absence by reason of a ' fleeing from justice.' analogous to that specified 
in section 1045, R. S., which has been held to mean leaving one's home, residence, 
or known abode within the district, or concealing one's self therein, with intent to 
avoid detection or punishment for the offense against the United States." (U. S. v. 
O'Brien, 3 Dillon, 381: U. S. v. White,5CranchC. C.,38, 73 (Fed.Cas., 16675); Gould 
& Tucker, Notes on Revised Statute^ 349.) "Thus held that, in a case other than 
desertion, it was not essential for the prosecution to be prepared to prove that the 
accused had been beyond the territorial jurisdiction of the United States in order to 
save the case from the operation of the limitation." A long list of departmental 
decisions will be found cited as supporting this statement in the Digest of Opinions 
of the Judge Advocates General of the Army, 1912 (p. 172, par. E). 

In the Attorney General's opinion of September 1, 1876 (15 Ops., 163), it was said, 
"The language of the exceptionis 'unless, by reason of having absented himself, or 
of some other manifest impediment, he shall not have been amenable to justice.' etc. 
Absence, then, in order to bring the accused therein, must be such as to render him 
not amenable to justice. * * * Unouestionably, absence in a foreign land would 
place the accused beyond such jurisdiction, and thus make him not amenable: so, 
it has been thought, would absence within the limits of this country, if lie were where 
the military authorities, by reasonable diligence, could not discover him. (See 14 
Opin., 267.) It would be difficult .perhaps impossible, tolay down any general rule 
whereby to determine in all cases under what Facts and circumstances the accused 
may be deemed to be beyond the reach and power of the military authorities to bring 
him to trial, or beyond the jurisdiction of a court-martial. This is a matter which 
must needs be left, in each case, to the judgment of the court itself upon the pari Icular 
facts and circumstances appearing therein, subject to revision by the proper authori- 
ties." 

From the record of proceedings i t appears that the prosecution did not introduce 
any evidence to support the specification of the first charge, as the material witness 
as to thealleged offense sne^ified therein could not be located. The court therefore 
acquitted the accused of this charge. 

50756°— 17 38 



592 STATUTE OF LIMITATIONS. 

The facts brought forth with reference to the charge of desertion, as shown by the 
record, are as follows: The accused, while in arrest, left his ship and station, the 
U. S. S. Philadelphii, navy yard, Puget Sound, Wash., without authority on Sep- 
tember 27, 19 18. His commanding officer made special efforts to recapture him, by 
having the cities of Charleston and Bremerton searched by the ship's police, and by 
offering rewards which were sent to the police of all near-bv cities, also to his home 
city, Oakland, Cal. 

From the testimony introduced by the defense it appears that the accused arrived 
in Chicago, 111., October 1, 1908 (only four days after his desertion from Puget Sound 
Wash.). That he remained in Chicago from October 1, 1908, until the middle o, 
November, 1908, when he went to the Pacific coast, visiting the towns of Portland, 
Los Angeles, and Oakland, and that he went to Scotia, Cal., where he remained from 
November, 1910, to December, 1912. 

The term for which the accused was enlisted did not expire until July 1, 1910, and, 
accordingly, the statutory period of limitations for his offense of desertion could not, 
under any sircumstances, expire prior to July 1, 1912. The question for the court 
to decide, therefore, was whether the accused fled from justice at any time between 
the date of his desertion, namely September 27, 1908, and July 1, 1912. The evidenc e 
shows distinctly that immediately upon deserting from the U. S. S. Philadelphia at 
the navy yard, Puget Sound, Wash., the accused fled to Chicago, 111., more than half 
way across the country from his "home city, " which was, as above stated, Oakland, 
Cal. This was certainly a "fleeing from justice.'' Furthermore, the evidence shows 
that about 20 months before the expiration of the statutory period the accused went 
to work in Scotia, Cal.. where he remained continuously until December, 1912, with 
the exception of infrequent visits to other places in California, and that he concealed 
from his employer, as also from relatives and friends, the fact that he Avas a deserter 
from the Navy. 

Scotia, Cal.. is a place of less than 500 inhabitants, and most inaccessible, being 
entirely off the line of usual travel. This fact should have been taken judicial notice 
of and should have been considered by the court in connection with all other facts 
which tended to show the absence of the accused was by reason of a "fleeing from 
justice." The accused introduced a relative and personal friends as witnesses whose 
testimony showed that they knew of the whereabouts of the accused during most of 
the period of his absence. 

From all the facts in this case it is the opinion of the department that, during his 
separation from the service, the accused was a fugitive and was not amenable to 
justice; and that the conclusions of the court on the second charge are not supported 
by the evidence. To hold otherwise would mean that the Navy Department is 
required to institute a thorough search for deserters, not only in the vicinity of the 
place at which they deserted and the place of their last known residence, but also 
throughout the United States in every city or town, large or small, and in this specific 
case that it was the duty of the Navy Department to make search for the accused in 
Chicago, 111., in the cities on the Pacific coast, and eA-en in Scotia, Cal., which appears 
to have been the smallest and most out-of-the-way place in which the accused could 
find employment, and an ideal place for a deserter to conceal himself. And the 
court's holding, if approved by the department, would further mean that where a 
deserter from the Navy succeeds in concealing himself, either in a large city or in a 
small and inaccessible'place, neither of which had been known as his home, he is, 
nevertheless, entitled to profit by his successful evasion of the law and escape punish- 
ment on the ground that prosecution was barred by the statute of limitations. How- 
ever, the purpose of such statutes is merely to require reasonable diligence on the part 
of public officers in apprehending offenders and bringing them to justice and not to 
place a premium on the ingenuity of such offenders as succeed in concealing their 
whereabouts and escaping apprehension for a limited period. 

In view of the foregoing remarks and of the reasons set forth in the department's 
letter directing the court to reconsider its action in sustaining the plea of the statute 
of limitations, the department approved the proceedings and the findings and 
acquittal on the first charge and disapproved the findings and acquittal on the second 
charge. C. M. O. 27. 1913, "13-18. 
11. Desertion in time of war.— No statute of limitations applicable to desertion in time 
of Avar. File 26516-137, Sec. Navy, July 9, 1914. See also Desertion, 132-137. 



STATUTE OF LIMITATIONS. 593 

12. Fraudulent enlistment. — The accused was brought to trial by general court-martial 
by order of the commander in chief United States Asiatic Fleet, on the charge of 
"fraudulent enlistment," preferred on January 6, 1912, the specification alleging 
that the offense was committed on June 21, 1909, "more than two years before the 
issuing of the order for such trial." (Art. 61, A. G. N.) 

Upon arraignment the accused, by his counsel, pleaded the statute of limitations 
as contained in article 61 of the Articles for the Government of the Navy, which article 
reads as follows: 

"No person shall be tried by court-martial or otherwise punished for any offense, 
except as provided in the following article, which appears to have been committed 
more than two years before the issuing of the order for such trial or punishment, 
unless by reason of having absented himself, or of some other manifest impediment, 
he shall hot have been amenable to justice within that period. (The following article 
contains the limitation with respect to desertion.)" 

It will be observed that the statute only runs in favor of an accused party when 
he has not, "by reason of having absented himself or of some other manifest impedi- 
ment," placed himself beyond the jurisdiction of a court-martial; in other words, when 
he has not been within the "exceptions" of the statute. 

It was said in a memorandum of the Judge Advocate General (26262-1034), dated 
November 15, 1910, after a review of the numerous cases, that— 

"The bar of the statute may be interposed by a special plea, or it may be put in 
evidence upon the general issue. In either case, of course, it would be the duty of 
the court, if it found that the offender had not been outside the jurisdiction of a court- 
martial, to sustain his plea in the one case or to find in the other that, even though 
guilty of the offense, he is not amenable to punishment." 

With respect to the burden of the proof in pleading a statute of limitations, while 
the procedure varies, in the Federal courts such burden is upon the party pleading 
the statute. (25Cyc, 1425.) Thus, in Borland v. Haven (37 Fed., 394, 413) it is said: 

"Besides the defense is an affirmatrve one set up by the defendants themselves, 
and it devolves upon them to show affirmatively that the bar has attached and to 
what part." 

In the accused's case the defense merely alleged that the statute of limitations was 
relied on without showing affirmatively that the accused had at all times since he 
committed the offense with which he was charged been within the jurisdiction of 
a court-martial. This should have been affirmatively proved, as might have been 
done from the copy of his professional and conduct record, which was in the hands 
of the judge advocate of the court. As was said in United States v. Cook (117 Wall., 
168. 179): 

"Accused persons may avail themselves of the statute of limitations by special 
plea or by evidence under the general issue, but courts of justice, if the statute con- 
tains exceptions, will not quash an indictment because it appears upon its face that 
it was not found within the period prescribed in the limitation, as such a proceeding 
would deprive the prosecution of the right to reply or give evidence, as the case may 
be, that the defendant fled from justice and was within the exception." 

To the same effect see United States v. White (28 Fed. Cas., No. 16, 676) and In re 
Davison (21 Fed., 618, 621). 

From the argument made by the counsel for the accused in this case in present ing 
the plea of the statute, it appears that his remarks were directed principally to the 
fact that it was erroneous to bring the accused to trial at all. In this he was, of course, 
mistaken, as above indicated. He should have offered to show that the accused was 
not within the exceptions. This technical accuracy in pleading, it is believed , should 
not be fully insisted upon, particularly as it is not customary, under t he circumsl ances 
existing in this case, to bring the man to trial. vVs staled in the memorandum of 
the Judge Advocate General (26262-1034) of November 15, 1910, referring to such a 
situation and to the department's practice: 

"If from the facts of the ca.se it appears that the offense was committed more than 
two years before, the offender is not brought to trial. 

"Certainly if the prosecution is not prepared to prove that the accused is within 
the exceptions of the statute of limitations there would be no good reason ordinarily 
in trying an accused person under those circumstances where the bar could be pleaded 
and the proceeding summarily ended." Sccalso C. M. O. 31, 1910, 5; 14. 1911. 

Consequently, although the plea, of the accused was overruled by the court, vet. 
after he had pleaded guilty and was allowed to introduce in evidence a copy of his 



594 STATUTE OF LIMITATIONS. 

professional and conduct record, from which it necessarily appeared that he had been 
continuously in the Marine Corps from three days subsequent to the date of the 
fraudulent enlistment with which he was charged" until the date of his trial, it was 
within the sound discretion of the court to have reversed its decision upon the plea 
and to have ended the trial. (25 Cyc, 1404.) 

The accused was found guilty and sentenced to confinement for one year and dis- 
honorable discharge, with the usual forfeitures. Clemency was recommended by 
six of the seven members of the court. 

The reviewing authority disapproved the proceedings, findings, and sentence, on 
the ground "that the offense with which the accused is charged was committed 
more than two years prior to the date that he was brought to trial." 

While, as shown above, the disapproval was proper, yet the ground upon which 
it is placed was incorrect. It is hardly necessary to repeat that the statute does not 
bar the trial of the accused but must be pleaded by him specially or shown by him 
under the general issue. C. M. 0. 10, 1912, 8-10. 

Policy of department not to bring offenders to trial for "Fraudulent enlistment'' 
unless the prosecution is prepared to prove that the accused was not amenable to 
justice within a period of two years after the commission of that offense by reason 
of having absented himself or for some other manifest impediment. C. M. O. 31, 
1910, 5. See also Fraudulent Enlistment, 87-90; Statute of Limitations, 10. 

13. Legal impediment to trial. See Statute of Limitations, 10. 

14. Offense dated— So as to bring offense within statute of limitations. C. M. O. 23, 

1913, 14. 

15. Officers— In view of the language of A. G. N. 62 it might not be sufficient to draw up 

charges and specifications and hold them in the department until the deserter should 
be apprehended, but it would appear necessary to issue the order for his trial within 
two years: that is to say, the charges and specifications should be transmitted to a 
general court-martial with an order directing that the accused be brought to trial 
at the earliest practicable date, and that a copy of the charges and specifications be 
delivered the accused, etc., in the usual form. This would constitute a commence- 
ment of the proceedings within the statutory period, and the delay which might 
subsequently occur would be due to the fact that the accused was afugitive from justice 
and thereby himself prevented further proceedings. 

It should not be lost sight of that, in computing the statutory period of limitations, 
the time during which the accused was absent from the United States or other mani- 
fest impediment existed to his trial should be excluded. File 26516-82, J. A. G., 
May 31, 1912. See also Desertion, 91. 

16. Plea in bar of trial— In the case of an electrician first class the court sustained the 

plea of the accused to the charges of "Desertion" and "Knowingly and willfully 
misappropriating and applying to his own use propert3* of the United States furnished 
and intended for the naval service thereof," although the judge advocate had evidence 
which he failed to introduce showing that the accused deserted after discovery of the 
shortage in Government property for which he was responsible; that "all efforts" 
were made to recapture him; that'" Bremerton and Charleston were searched by ship's 
police;" and that "rewards were offered and sent to the police of all near-by cities, 
also to his home city, Oakland, Cal v " etc. The department directed " that the court 
reconsider its finding upon the plea m bar interposed by the accused to both charges; 
and, if it is decided by the court to revoke its finding and override the plea of the ac- 
cused, it is further directed that the court proceed with the trial. Should the court 
on reconsideration overrule the plea of the accused and proceed with the trial, the 
defense would be entitled to avail itself of the statute of limitations by evidence in 
support of the plea of not guilty." etc. File 26251-7158:4. Sec. Xav. May 13, 1913. 

17. Policy of the department— In "Fraudulent enlistment*' cases. See Fraudulent 

Enlistment, 87-90; Statute of Limitations, 12, 20. 

18. Prevent running of— In order to prevent the running of the statute of limitations 

the order for the trial of an Assistant Paymaster upon certain charges was issued bv 
the department prior to the preparation of the specifications. When the charges and 
specifications were subsequently put in due form it was directed that the previous 
order be made a part of the record. Although the accused was represented by civilian 
counsel, no plea of the statute of limitations was interposed. File 26251-6822; G. C. 
M. Rec. 26451. See also Desertion, 91; Statute of Limitations, 15. 

19. Rule of procedure— The statute of limitations as contained in A. G. N. 61 is "a rule 

of procedure for the benefit of the accused," etc. C. M. O. 31, 1910, 5. See also 
Statute of Limitations, 20. 



STATUTE OF LIMITATIONS. 595 

20. Run— Statute of limitations having run— It is observed that the accused was tried 

under the second charge, that of "Fraudulent enlistment," which offense was com- 
mitted more than two years before the issuing of the order for trial. Although 
"fraudulent enlistment" is not, like desertion, a continuing offense (File No. 52.56-04), 
and although the statute of limitations as contained in article 61 of the Articles for 
the Government of the Navy is "a rule of procedure for the benefit of the accused," 
and does not prevent the jurisdiction of the court-martial from attaching in proper 
cases (In re Bogart, 3 Fed. Cas., No. 1596; In re Davidson, 4 Fed. Rep., 507, 21 Fed. 
Rep., 618; In re White, 17 Fed. Rep., 723; In re Zimmerman, 30 Fed. Rep., 176; 
Ex parte Townsend, 133 Fed. Rep., 74; note to U. S. v. O'Brian, 27 Fed. Cas., No. 
15908), and as such must be by him pleaded (In re Bogart, 3 Fed. Cas., No. 1596; 
Johnson v. U. S., 3 Fed. Cas., No. 7418), yet it is the policy of the department not to 
bring offenders to trial for "fraudulent enlistment "unless the prosecution is prepared 
to prove that the accused was not amenable to justice within a period of two years 
after the commission of that offense by reason of having absented "himself or for some 
other manifest impediment. 

From the record it appears that the accused in this case first enlisted July 8, 1907, 
deserted November 18, 1907, and fraudulently enlisted February 26, 1908. During 
all the period between the*last-mentioned date and the expiration of two years there- 
from, i. e., February 25, 1910, the accused was within the jurisdiction of the naval 
authorities, and could, if the facts had been known, have been brought to trial. But 
lack of knowledge or necessary evidence did not prevent the statute from running in 
his favor (14 Op. Atty. Gen., 266), and had he pleaded the bar thereof before the 
court, the plea should properly have been sustained. 

As the accused did not plead the statute it must be held that he waived its benefits 
(Johnson v. U. S., 3 Fed. Cas., No. 7418), but as already stated it is the policy of the 
department not to bring an accused to trial under the circumstances of th is case. The 
" sentence of the court has already been reduced by the reviewing authority from two 
years' to one year's confinement with corresponding reduction in loss of pay, and as 
that would represent the sentence for desertion alone, the proceedings, findings, and 
sentence, as mitigated, were approved. C. M. 0.31, 1910, 5. 

21. Specifications— Laid to cover offenses within. C. M. O. 69, 1903, 2. 

22. Suggested — Statute of limitations proposed. An. Rep. J. A. G., 1894, p. 8. 

23. Trial of enlisted men by courts-martial who have absented themselves more 

than two years subsequent to date of expiration of enlistments— "While 
the statute of limitations is a matter of defense which should be entertained and 
determined by the court like any other question involving an adjudication upon 
the merits of the case, there would be no good reason ordinarily in trying an accused 
person where the statute could be pleaded in bar and the proceedings summarily 
ended. Accordingly the established practice should be continued of not bringing 
offenders to trial wheresuch period of time lias elapsed as to prima facie constitute a bar 
to trial, unless the prosecution is in possession of facts indicating that the accused is 
within the exceptions of the statute of limitations. (File 26262-1034:3. See also 
C. M. O. 27, 1913, 13.) To this may be added that, as the accused may waive his 
right to plead the statute of limitations, if the commandant should for any reason 
deem it advisable to bring him to trial, and the accused should stipulate that in such 
event he would not avail himself of the statute, his trial may be ordered if so recom- 
mended by the commandant, although there may be no evidence available to the 
prosecution to indicate that the accused falls within the exceptions of the statute." 
File 26516-214, Sec. Navy,_ July 22, 1916. 

24. Waived — The statute of limitations must be pleaded, otherwise it is waived. C. M. O. 

31, 1910, 5; 14, 1911, 3. See also G. C. M. Rec. 21479. See also Statute of Limita- 
tions, 20. 

25. War— No statute of limitations applicable for desertion in time of war. See Deser- 

tion, 132: Statute of Limitations, 11. 

26. Warrant officer (boatswain)— "The records of the department show numerous com- 

plaints from the creditors of Boatswain * * * [the accused] concerning the non- 
payment of his debts, many of which have extended over such a period of time thai 
prosecution thereof is barred by the Statute of Limitations." C. M. O. 34, 1916, p. 3. 

27. When statute begins to run— The department in reviewing the record of proceedings 

in the case of a private, United States Marine Corps, observed that an offense was 
alleged to have b.r.m committed by the accused more than three years prior to the 
date the specification was preferred against him. 



596 STATUTE OF LIMITATIONS. 

Section 1624 of the Revise! Statutes and amendments, covering the statute of 
limitations, as set forth in article 61, Articles for the Government of the Navy, pro- 
vides as follows: 

"Art. 61. No person shall be tried by court-martial or otherwise punished for any 
offense, except as provided in the following article, which appears to have been com- 
mitted more than two years before the issuing of the order for such trial or punish- 
ment, unless by reason of having absented himself, or of some other manifest impedi- 
ment, he shall not have been amenable to justice within that period.'' 

In view of the above-quoted law it might appear that the operation of the statute 
of limitations would invalidate the proceedings in this case. It has been held, how- 
ever, that the bar of the statute of limitations is a matter of defense, and that by failing 
to use it as such, the defendant waives it. 

In the case of In re Bogart (3 Fed. Case No. 596) the court held: 

" As to the alleged former conviction, and the bar of the statute of limitations, these 
are matters of defense, and are questions for the determination of the tribunal having 
jurisdiction to try the charge. 

The latter may involve an inquiry as to whether the petitioner has absented him- 
self, or whether other legal impediment to the trial has existed. These are matters 
that will arise in the exercise of jurisdiction, as in this opinion before distinguished 
from the fact of the existence of jurisdiction, to hear and determine the charge. They 
are matters to be pleaded as a defense. (Johnson v. U. S., Case No. 7418); U. S. v. 
Cook, 17 Wall., 84 U. S., 168.)" 

In the case of Johnson v. U. S., referred to in the foregoing ruling, the opinion of trie 
court was as follows: 

«* * * And it is insisted that the act prohibits the punishment of the offender, 
where the prosecution is not commenced within two years, the proceedings were null 
and void and not merely erroneous; and that on this ground the prisoner should be 
discharged. Where there is a want of jurisdiction apparent upon the record the 
proceedings of the court are not valid. But there is no want of jurisdiction in this 
case. The court had jurisdiction of the offense, and if there was a bar under the 
statute it should have been plea led. No such plea was interposed. * * * By 
failing to set up the defense the defendant waived it.'' 

While it is probable that the specification should have alleged the offense to have 
been committed in the year 1911, the department considered that the error would 
not invalidate the proceedings in the case as, the jurisdiction of the court being 
undoubted, the time laid in the indictment is not material in this aspect of the case. 

Furthermore, the accused having pleaded guilty to the specification, no injustice 
was supposed to have been done. C. M. O. 14, 1911, 3. 

STATUTORY BOARDS. See Boards, 1. 

STATUTORY CONSTRUCTION AND INTERPRETATION. 

1. Advisory statutes. See Advisory Statutes. 

2. Ambiguous and doubtful statutes— "In the construction of a doubtful and ambig- 

uous law the contemporaneous construction of those who were called upon to act 
under the law, and were appointed to carry its provisious into effect," should not be 
disregarded. (Edwards v. Darbv, 12 Wheat. 236, cited with approval in Atkins v. 
Disintegrating Co., 18 Wall. 272, 301; Smythe v. Fiske, 23 Wall. 374, 382; U. S. v. Pugh,' 
99 U. S. 265; U. S. v. Moore, 95 U. S. 760, 763.) 15 J. A. G. 294-295, May 31, 1911. 

3. *' Avowals of trainers" —It is the duty of the court to construe a law or ordinance, and 

gather its intention from the law itself, and not from contemporaneous avowals of 
individual framers of it." (Barnes v. Mayor, etc. of Mobile, 19 Ala. 707). File 24482- 
34, J. A. G., May 1, 1911, p. 18. 

4. Cases arising hereafter— Even though the words of a statute are broad enough in 

their literal extent to comprehend existing cases, they must yet be construed as 
applicable only to cases that may hereafter arise, unless the "language employed 
expresses a contrary intention in unequivocal terms. See File 8627-189, May 12, 1915. 
But see contra 7 Comp. Dec. 844. 

5. Common law— Construction of statutes intended to be declaratory of the common 

law. See Common Law, 9: Statutory Construction and Interpretation. 

6. Common sense as a guide. See Statutory Construction and Interpreta- 

tion, 117. 

7. Conditions at time of enactment— It is an established rule that statutes are to Ije 

construed in the light of conditions which existed at the time of their enactment. 
File 27231-63, J. A. G., May 27, 1915, p. 2. 



STATUTORY CONSTRUCTION AND INTERPRETATION. 597 

The court should endeavor to place itself as far as possible in the light that the 
legislature enjoyed, to look at things as they appeared to it, and to discover the purpose 
of the law from the language used in connection with attending circumstances. File 
26260-1392, June 29, 1911, p. 5. 

8. Congress — Proceedings and debates. See Statutory Construction and Inter- 

pretation, 17, 18. 

9. Same— Proceedings other than debates. See Statutory Construction and Inter- 

pretation, 18. 

10. Constitutionality of a statute. See Statutes, 4. 

11. Contemporaneous construction— The contemporaneous construction of a statute 

by those charged with its administration, "should not be disregarded or overturned 
except for cogent reasons and unless it be clear that such construction is erroneous." 
(U. S. v. Johnston, 124 U. S. 236). File 26260-1392, 26260-697, J. A. G., June 29, 1911, 
p. 5. See also Statutory Construction and Interpretation, 2. 

Contemporaneous and long continued construction of the law by the administra- 
tive officers charged with its execution is controlling, for in such case it is not so im- 
portant to determine whether the original construction of the law was correct, as that 
a construction acted on for such a period of time shoold be upheld. (20 Op. Atty. 
Gen. 362.) File 26521-144:1, Sec. Navy, July 10, 1916, p. 3. 

12. Same— "The contemporaneous construction of the law by the department, which, 

according to the Supreme Court, is entitled to great weight and 'in a case of doubt 
ought to turn the scale.' (Brown v. U. S. , 113 U. S. 568.) " File 27213, J. A. G. , Apr. 
24, 1909, p. 4. 

13. Contemporaneous and uniform interpretation — "This contemporaneous and 

uniform interpretation is entitled to weight in the construction of the law, and in a 
case of doubt ought to turn the scale. (Brown v. U.S., 113 U. S. 571.)" Filel. 130-2b, 
J. A. G., July 31, 1909, p. 5. 

14. Context. See Statutory Construction and Interpretation, 56. 

15. Criminal statutes— "Whether the construction of a civil statute of limitations is to 

be strict or liberal — a question on which there is no absolute harmony of opinion— that 
of a criminal one is plainly in principle to be liberal; because it is a provision in favor 
of the accused and we have seen that this sort of provision is to receive a highly liberal 
construction. And such is the doctrine— at least the better doctrine — of the courts." 
(Bishop on Statutory Criminal LaAv, sec. 259.) File 26516-47, J. A. G., May 18, 1911, 
n. 4. See also Statutes, 6; Statutory Construction and Interpretation, 88, 92. 

16. Date— The general rule is that laws speak from the date of their enactment. File 

13707-38:9. Sec also 25 Op. Atty. Gen. 299. 

17. Debates in Congress— Are frequently referred to in confirmation of a construction 

otherwise arrived at by the court. (Hepburn v. Griswold, 8 Wall. 610.) File 20255- 
14/A, J. A. G., May 4, i909, p. 4. See also File 26253-114, J. A. G., Aug. 19, 1910, p. 14. 

18. Same — "While a statute must ordinarily be construed from the language used therein, 

it is not inadmissible to revert to the actual proceedings in Congress, apart from the 
opinions expressed in debates, to assist in the determination of the construction 
of a statute of doubtful import, and the Supreme Court has thus interpreted a badly 
expressed enactment. (Blake v. National Banks, 23 Wall. 307.)" File, 14818-4, J. A. 
G., p. 17. 

13. Definition— Of statutory construction and interpretation. Sec Words and Phrases 
(Construction of Statutes). 

23. Departmental circulars— The courts in construing statutes involved, in cases of 
doubt, attach considerable weight to the provisions of departmental circulars as 
indicating the administrative construction. {See for example Plummet' v. U. S., 224 
U. S. 143, involving circular of the surgeon general with reference to the pay of Acting 
assistant surgeons in the Navy.) File 13707-48, J. A. C, Aug. 2, 1915. 

21. Departmental construction— The construction given to a statute by those charged 
with the duty of executing it is always entitled to the most respectful consideration, 
and ought not to be overruled without the most cogent reasons. (U. S. c. Moore, 95 
U. S. 760, 763.) The officers concerned are usually able men and masters of t he subject . 
Not infrequently they are the draftsmen of the "laws they are afterwards called upon 
to interpret. ( Reports of J. A. (1 ., 1S95, 1896, 1897; U.S. v. Moore, 95 U.S. 703; Brown 
v. U. S., 113 U.S. 571; Heath v. Wallace, 138 U. S. 582; File 26255 tt A. etc.. J.A.G., 
May 4, 1909.) File 26260-1294, J. A. G., June 10, 1911, p. 7; L5 J. A. G„ 294r-295, May 
31, 1911; 26260-1392, 26260-697, J. A. C, June 29, 1911, p. 5. S« also File 26260-3966, 
J. A. C, Feb. 24, 1910, p. 10. 



598 STATUTORY CONSTRUCTION AND INTERPRETATION. 

22. Same — "It is now settled that the construction and practice or the executive depart- 

ment charged with the administration of a statute is controlling in cases of doubt." 
File 26251-2993, J. A. G., Mar. 10, 1910, p. 9. 

23. Same — "When an act of Congress has for a considerable period of time received a 

uniform departmental construction, and this construction was known to Congress, 
and a subsequent act in pari materia is enacted without change of language, there is a 
presumption of considerable force that the new language is intended to receive the 
same construction as the old." (21 Op. Atty. Gen. 339.) File 3980-1075, J. A. G., 
Apr. 6, 1915. 

24. Same— The Supreme Court has held that the substantial reenactment of a statute 

which has received departmental construction is not merely "indicative of legisla- 
tive approval of the departmental construction," but that "Congress will be held 
to have adopted that construction." (U. S. v. Falk, 204 U. S. 143.) The case cited 
related to the construction of a law by the Attorney General which was foUowed 
by the executive officers charged with its administration. 

In United States v. Hermanos (209 U. S. 327) this principle was extended to the 
construction of a statute by the Treasury Department and its subsequent reenact- 
ment by Congress; the court there stating: " We have said that when the meaning of 
a statute is doubtful great weight should be given to the construction placed upon 
it by the department charged with its execution. (Robertson v. Downing, 127 U. S. 
607; U. S. v. Healey, 160 U. S. 136.) And we have decided that the reenactment by 
Congress, without change, of a statute, which had previously received long continued 
executive construction, is an adoption by Congress of such construction. (U. S. v. 
Falk, 204 U. S. 143, 152.)" 

In this connection attention is invited to the decision of the Court of Claims in the 
case of Falk v. United States (2i Ct. Cls. 242) that "where a jurisdictional act adopts 
the language of a previous statute which had been interpreted for several years in a 
certain way by an executive department, it must be inferred that Congress intended 
to use the language as thus interpreted;" the Court of Claims stating in its opinion, 
with reference to the interpretation of the later act, that "Congress intended to use 
therein the words 'citizens of the United States,' in the sense that had been given by 
the Interior Department to the same words in the act of 1885 for the past six years, 
which, it must be presumed, was known to Congress." 

The Comptroller of the Treasury has also recognized and applied this principle in 
the interpretation of statutes. (See for example 2 Comp. Dec. 100.) 

Reference may also be made to the decision of the Court of Claims in Carlinger v. 
United States (30 Ct. Cls. 476) in which it was held that the interpretation given to 
the laws by executive regulations which have "received the tacit, if not express, 
approval of Congress," will not be disturbed by the court even though it "may well 
be doubted" whether such regulations were in fact authorized by law. 

Furthermore, it has repeatedly been held by the Attorney General that the reen- 
actment of a law which has received executive const ruction is equivalent to the 
adoption by Congress of such construction. (21 Op. 410; id. 339; id. 352; 15 id. 616.) 

In this connection it may also be remarked that the Supreme Court in Wilkes v. 
Dinsman (supra), in holding that enlisted men of the Marine Corps were embraced 
by a statute providing for active duty, after expiration of enlistment, of persons 
"enlisted for the Navy," added, as strengthening its conclusion: "Such was the 
construction put on this section at the time by the Navy Department and navy 
officers on board * * * ." File 26280-61, Sec. Navy, July 10, 1915. 

"When an act of Congress has, by actual decision or by continued usuage and 
practice, received a construction at the proper department, and that construction 
has been acted on for a succession of years, it must be a strong and palpable case of 
error and injustice that would justify a change in the interpretation to be given it. 
(2 Op. Atty. Gen. 558. See also 11 Op. Atty. Gen. 553.) File 313-12, J. A. G., Mar. 
3, 1908, p. 5; 2625.5-1 4-A, etc., J. A. G., May 4, 1909, p. 2. 

25. Departmental practice— " The long continued practice of a department of the Govern- 

ment, if not clearly illegal, will be recognized by the courts in the construction of a 
statute as entitled to great weight." File 26516-38, J. A. G., Dec. 3, 1910, p. 4. 

26. Departmental precedents— Where the department's precedents establish a uniform 

practice it was held by the Supreme Court of the United States that the contemporane- 
ous and uniform interpretation of a statute by an executive department charged 
with its administration is conclusive even though the true construction of the law 
might be open to doubt were the question a new one. (Brown v. U. S. , 113 U. S. 568.) 
File 177.9-20, J. A. G., Dec. IS, 1913. 

27. Departmental usuage. See Statutory Construction- and Interpretation, 24. 



STATUTORY CONSTRUCTION AND INTERPRETATION. 599 

23. Derogation of the appointing power— " Statutes in derogation of the appointing 
power must be strictly construed, and not extended any further than is required by 
the plain import of the words used." File 5252-36, J. A. G., May 5, 1910, p. 9. See 
also Officers, 96. 

29. Difficulty of construction—" Even the most skillful draftsman of legislation can not 

guarantee that his product will be free from doubtful questions, for written language 
is, at best, only an imperfect medium for the expression of ideas. As the Supreme 
Court has stated, there have not been wanting 'illustrious instances of great minds 
which, after they had, as legislators or commentators, reposed upon a short and 
hasty opinion, have deliberately withdrawn from their first impressions when they 
came upon the judgment seat to re-examine the statute or law in its full bearings.' 
[Mitchell v. Great Works Milling etc.-Co. (2 Story 653).]" An. Rep., J. A. G., 1916, 
p. 18. See also Statutes, 9; Statutory Construction and Interpretation, 
30-31. 

30. Draftsman— « What is known as the 'legislative intent 5 may be, and very frequently 

is, quite a different thing from the intention of the individual who drafted the bill." 
14 J. A. G., 62, Nov. 3, 1908. 

31. Same— "The intention of the draftsman of the act or the individual members of the 

legislature who voted for and passed it, has nothing to do with its construction. The 
only just rule of construction especially among a free people, is the meaning of the 
law as expressed to those to whom it is prescribed, and who are to be governed by it. 
(City of Richmond v. County of Henrico, 2 S. E. 26, 30). File 24432-34, J. A. G., 
May 1, 1911, p. 17. 

" It is not understood by many who irresponsibly draft proposed laws, that statutes 
are interpreted not by what the draftsman intended to say, but by what the words 
used do actually say as determined by the ordinary canons of statutory construction." 
An. Rep. J. A. G., 1916, pp. 17-18. See also Statutes, 9, with reference to impor- 
tance of drafting proposed laws. 

32. Directory statutes. See Mandatory Regulations and Laws: C. M. O. 27, 1898, 1: 

File 28550-3, J. A. G., May 12, 1915, p. 4. 

33. Effect to be given every word. See Statutory Construction and Interpreta- 

tion, 65, 123. 

34. Ejusdem generis. See Ejusdem Generis. 

35. Evil statute is designed to remedy— The object which the legislative body sought 

to attain and the evil which it was endeavoring to remedy may always be considered 
for the purpose of ascertaining its intention. (U. S. v. Ninety-Nine Diamonds, 139 
Fed. 961, 965.) File 26253-200-1, J. A. G., Feb. 17, 1912, p. 8. 

36. Same— " Another guide to the meaning of a statute is found in the evil which it is 

designed to remedy; and for this the court properly looks at contemporaneous events, 
the situation as it existed, and as it was pressed upon the attention of the legislative body. ' ' 
(Holy Trinity Church v. U. S., 143 U. S., 457, 465.) File 26253-200:1, J. A. G. Feb. 
17, 1912, pp. 8-9; 26260-1392, 26260-697, J. A. G., June 29, 1911, p. 8. 

"A construction of a statute which would go beyond the evil intended to be 
remedied and produce apparently unforeseen and untoward results should be 
avoided." (28 Op. Atty. Gen. 78.) File 26516-38, J. A. G., Dec. 3, 1910, p. 4. 

37. Expressio unius est exclusio alterius— " Where a statute enumerates the persons or 

things to be affected by its provisions, there is an implied exclusion of others; there 
is then a natural inference that its application is not intended to be general. (Suther- 
land, sec. 327.) File 27213, J. A. G., Apr. 24, 1909, p. 4. 

38. Extension by implication. See Officers, 96. 

39. Flexible language— "By such a reading and consideration of a statute its object or 

general intent is sought for and the consistent auxiliary effect of each individual part. 
Flexible language which may be used in a restrictive or extensive souse will be con- 
strued to make it consistent with the purpose of the act and the intended modes of 
its operation as indicated by .such general mtetti , survey, and comparison." (Suther- 
land on Statutory construction, p. 285.) File 11130-21),' J. A. G., July 31, 1909, p. 5. 

40. General act repealing a previous particular act. See Statutory Construction 

and Interpretation, 115 117. 

41. General words— May 1x3 restricted by context. See Statutory Construction a\i> 

Interpretation, 56; Words vm> Phrases ( IVbsctt ur a sociis). 

42. General and special provisions. See Statutory Construction \\n Interpreta- 

tion, 115-117. 

43. "Hereafter." See "Hereafter." 

44. Implied repeals never favored. Sec Statutory Construction \xi> Interpreta- 

tion, 109. 



600 STATUTORY CONSTRUCTION AND INTERPRETATION. 

45. In pari materia. See Statutory Construction axd Interpretation, 23; Words 

and Phrases. 

46. Inconvenience, injustice, or prejudice to public interests— It is only where the 

proper construction is otherwise doubtful that arguments based on the inconvenience, 
injustice, or prejudice to the public interests resulting from a proposed construction 
may be considered. File 26521-30, Jan. 25, 1912. See also 26 Op. Atty. Gen., 537. 

47. Increase of personnel by implication— It has repeatedly been held that legislation 

relating to the Navy should not be construed as impliedly increasing the officers 
authorized by law. where no such result was intended by Congress; that when 
Congress has seen fit to make increases in the number of officers in the Navy, either 
generally or in particular corps or grades, it has generally used specific and apt 
language to accomplish that object. (See 28 Op. Atty. Gen. 526; see also File 27215-3, 
May 6, 1913.) File 5460-81, J. A. G., May 12, 1916. 

48. Individual legislators. See Statutory Construction and Interpretation, 3, 53. 

49. Injustice to public interests. See Statutory Construction and Interpretation, 

46. 

50. Intent of legislature— It is the intent of the legislature, as expressed in the law itself 

and apparent upon its face, that must govern its construction if that intent can 
reasonably be gathered from its terms. (TJ. S. v. Goldenberg, 168 TJ. S., 95, 102.) 
File 26253-200:1, J. A. G., Feb. 17, 1912, p. 8. See also File 26253-114, Aug. 19, 1910, 
p. 14. 

" Faults in expression were disregarded in order to carry out the manifest intention 
of the law-makers." File 26521-144:1, Sec. Navy, July 10, 1916, p. 3. 

"The intent of the present laws can only be gathered from the intent of the legis- 
lature as expressed in the laws themselves." File 28687-14, J. A. G., Dec. 14, 1916, p. 4. 

51. Same— It is the duty of the courts to say that, however broad the language of statute 

may be, the act, although within the letter, is not within the intention of the legis- 
lature, and therefore can not be within the statute. (Holy Trinity Church v. U. S., 
143 U. S., 457, 472.) File 26253-200:1, J. A. G., Feb. 17, 1912, p. 8. 

52. Same — The modern doctrine is that to construe a statute liberally or according to its 

equity is nothing more than to give effect to it according to the intention of the law- 
maker, as indicated by its terms and purposes. (Sutherland on Statutory Construc- 
tion.) 14 J. A. G. (Solicitor), 18, May 26, 1908. 

53. Same — " The legislative intent is an uncertain guide of interpretation and the opinions, 

motives, or purposes of individual legislators, remarks made in debate, or the inten- 
tion of the draftsman of the statute are too uncertain to be considered in its con- 
struction." (Tennant v. Kuhlemeier, 120 N. W. 689.) File 24482-34, J. A. G., May 
1,1911, p. 18. 

54. Same— The intent of the legislature is to be ascertained from a consideration of the en- 

tire act, its nature, its object, and the consequences that would result from construing 
it one way or the other (36 Cyc, 1157). File 26260-1244, J. A. G., Apr. 14, 1911, p. 2. 

55. Same — "A legislative act is to be interpreted according to the intention of the legis- 

lature apparent upon its face. (TJ. S. v. Fisher, 109 U. S., 145.) The Supreme Court 
have also said, ' We must take it to be true that the legislature intend precisely what 
they say, and to the extent which the provisions of the act require for the purpose of 
securing their just opinion and effect.' (2 Story, U.S., 653.)" File 26253-114, J. A. G, 
Aug. 19, 1910, p. 14. 

56. Same — " The proper course in all cases is to adopt that sense of the words which best 

harmonizes with the context, and promotes in the fullest manner the policy and objects 
of the legislation. The ride of strict construction is not violated by permitting the 
words of a statute to have their full meaning, or the more extended of two meanings, 
as the wider popular instead of the more narrow technical one; but the words should 
be taken in such a sense, bent neither one way nor the other, as will best manifest the 
legislative intent." (TJ. S. j. Hartwell, 6 Wall., 3S5, 395, construing a penal statute.) 
File 26260-1302. 26260-697, J. A. G., June 29, 1901, pp. 18-19. See also Boards, 1. 

It is established by the authorities that the intention of the individual by whom 
a statute was framed can not be considered in determining the meaning of such 
statute. File 24482-34, May 1, 1911. 

57. Same— "As a general rule, where an act is prohibited and made punishable by statute, 

the statute is to be construed in the light of the common law, and the existence of a 
criminal intent is essential. The legislature, however, may forbid the doing of an act 
and make its commission criminal without regard to the" intent of the doer, and if 
such an intention appears the courts must give it effect though the intention may 
have been innocent. Whether or not in a given case a statute is to be so construed 
is to be determined by the court by cons He ring the subject matter of the prohibition 
as well as the language of the statute and thus ascertaining the intention of the legis- 
lature." (12 Cyc, 14S.) 



STATUTORY CONSTRUCTION" AND INTERPRETATION. 601 

"The legislature may enact laws for the mere violation of which, irrespective of the 
criminal intent, penalties are attached; as for selling liquors to minors, selling adul- 
terated food and drugs, allowing minors to frequent saloons, changing and obstructing 
public roads, maintaining a nuisance, disposing of mortgaged property." (8 A. & E. 
Ency. of Law, p. 291.) C. M. O. 5, 1912, 7. 

" Where it can be shown that a Government has once adopted a certain rule of justice 
for its conduct, it is fair to infer, that in legislating afterwards upon the same subject, 
it intended to pursue the same rule, unless the contrary shall be clearly expressed." 
(U. S. v. Heth, 3 Cranch 399, 409.) File 26521-169, J. A. G., Nov. 14, 1916, p. 4. 

58. Intention of individual who framed statute. See Statutory Construction 

and Interpretation, 3, 53, 57. 

59. "Interpretation clauses" — "Clauses of the same character (known in England as 

'interpretation clauses') are frequently added to single acts, and are confined to the 
interpretation of the acts to which they are attached." (26 A. & E. Ency. Law, 
636, 637.) File 26254-78, J. A. G., July 1, 1908, p. 3. 

60. Judge Advocate General — Construct ion of "Statutes relating to personnel" of naval 

service is part of duties of Judge Advocate General. See Judge Advocate Gen- 
eral, 14, 20, 32. 

61. Judicial decisions of a former act. See Statutory Construction and Interpre- 

tation, 69. 

62. Language clear and unambiguous— There is no safer or better settled canon of 

the interpretation than that when language is clear and unambiguous it must be held 
to mean what it plainly expressed, and no room is left for construction. (S warts v. 
Sigel, 117 Fed. Rep., 13, 18.) File 3980-575:17, J. A. G., Aug. 19, 1911, p. 13. 

63. Language used— "In construing an act of Congress we are not at liberty to recur to 

the views of individual members in debate, nor to consider the motives which in- 
fluences them to vote for or against its passage. The act itself speaks the will of Con- 
gress, and this is to be ascertained from the language used." (U. S. v. Union Pacific 
R. R. Co., 9 U. S., 79.) File 24482-34, J. A. G., May 1, 1911, p. 18. 

64. Language and apparent objects — "In truth, courts of justice are not at liberty 

to look at considerations of this sort. We are bound to interpret the act as we find it, 
and to make such an interpretation as its language and its apparent objects require. 
We must take it to be true that the legislature intend precisely what they say, and 
to the extent which the provisions of the act require for the purpose of securing their 
just opinion and effect. Any other course would deliver over the court to intermi- 
nable doubts and difficulties; and we should be compelled to guess what was the law, 
from the loose commentaries of different debates, instead of the precise enactments 
of the statute." (Mitchell v. Great Works Milling, etc., Co., 2 Story, 653.) File 
24482-34, J. A. G., May 1, 1911, p. 18. 

65. Law must be construed as a whole — It may be necessary to consider every part of 

an act in its effect upon other parts in order to arrive at a construction that will be 
effective. File 11130-2b, July 31, 1909, p. 5. See also Statutory Construction 
and Interpretation, 123. 

66. Law should be settled permanently— But it is almost as important that the law 

should be settled permanently as that it should be settled correctly. Its rules should 
be fixed deliberately and adhered to firmly, unless clearly erroneous. Vacillation 
is a serious evil. File 5252-68, May 15, 1915, quoting Gilmaii v. Philadelphia (3 Wall., 
724). See also Stare Decisis, 1. 

67. Legislative construction—" While an expression of the legislative view as to the proper 

construction of another law is of no judicial force, it is nevertheless entitled to some 
weight in the construction of doubtful statutes." (26 A. & E. Ency. of Law, 636, 637.) 
File 26254-78, J. A. G., July 1, 1908, p. 3. 

68. Legislative intent. See Statutory Construction and Interpretation, 50-5S. 

69. Legislature presumed to know— "It is a general rule of interpretation that the 

legislature is presumed to know decisions of the courts construing its language, so 
that if the tribunals have given a certain construction and the legislature in a now 
law uses the same or practically the same language, without negativing the con- 
struction adopted by the courts, it will be presumed that the Legislature means what 
the courts have said." (25 Op. Atty. Gen., 309.) it is well settled that " words in a 
subsequent act are to be given the recognized meaning they had in a former act 
in pari materia in the absence of anything to show a contrary intent, and judicial 
decisions construing one of such acts ionn a sound rule of construction lor the other." 
(26 A. & E. Ency. of Law, 611.) File 26254-50, J. A. G., July 1, 1908, p. 2. 



602 STATUTORY CONSTRUCTION AND INTERPRETATION. 

70. Letter of statute— It is the duty of courts to say that, however broad the language 

of the statute may be, the act, although within the letter, is not within the intention 
of the legislature, and therefore can not be within the statute. (Holy Trinity Church 
v. U. S., 143 U. S., 457, 472.) File 26253-200:1, J. A. G., Feb. 17, 1912, p. 8. 

71. Same— The spirit and purpose of a statute are not to be lost sight of in a strict adherence 

to its letter. See Statutory Construction and Interpretation, 106. 

72. Literal sense of the law not necessarily its true sense— "But the literal sense of 

the law is not necessarily its true sense, for if, by taking the law by its fom- corners 
or by looking at it in the light of the circumstances in which it was passed, or by 
doing both, it appears that its meaning should be restricted or enlarged in order to 
carry out the intention of the legislature, it is the duty of the expounder to limit 
or amplify that meaning, as the case mav require." (19 Op. Atty. Gen., 616.) 
File 26280-61, Sec. Navy, July 10, 1915; 15252-66, J. A. G., May 13,1915, p. 7. 

73. "Making law"— It is the province of the courts to construe and interpret laws, not to 

make them — "It is the business of courts to decide what the law is, and not by con- 
sideration or surmises as to the policy of the Government have the effect to adjudge 
that to be law which has not been so enacted bv the legislature." (White v. U. S., 
191 U. S., 551, 552.) File 28550-3, J. A. G., May 12, 1915, p. 1. 

Under the strict rules of statutory construction a statute should not be so construed 
or interpretated as to have the effect of "enacting law." File 28687-14, J. A. G., 
Dec. 14, 1916, p. 3. 

74. Same— "It is the duty of the legislature to enact laws, not to expound or interpret 

them." (26 A. & E. Ency. of Law, 636, 637.) File 26254-78, J. A. G., July 1, 1908, p. 3. 
"i;he department was, of course, not makino, but was administering the statute." 
23 J. A. G., 142. 

75. Mandatory statutes— The question whether or not a statute is mandatory or directory 

depends upon the intention of the legislature, to be ascertained from a consideration 
of the entire act, its nature, its object, and the consequences that would result 
from construing it one way or another. File 26260-1244, J. A. G., Apr. 14, 1911. 
See also 8 Op. Attv. Gen., 112. 

76. " May "—Use of "may" in statute. See File 28550-3, J. A. G., May 12, 1915. 

77. " May" and " shall "—Under certain circumstances the words "may" and "shall" 

have an identical mandatory meaning. File 26253-114, J. A. G., Aug'. 19, 1910, p. 12. 

"Shall" will be construed "may" where no public or private interest is impaired 
by such construction; but where the public are interested, or where the public or third 
persons have a claim dejure that the act shall be done, it is imperative, and will be 
construed to mean "must." (City of Madison v. Daley, 58 Fed. Rep., 751, 753.) File 
26260-1244, J. A. G., Apr. 14, 1911, p. 2. 

"'May' should be construed in a statute to mean 'shall' wherever the rights of 
third persons or the public good requires." (48 Mo., 390, 8 Am. Rep., 108.) 14 
J. A. G., 62, Nov. 3, 1908. 

"The conclusion to be deduced from the authorities is that where power is given 
to public officers, * * * whenever the public interest or individual rights call for 
its exercise, the language used, though permissive in form, is in fact peremptory. 
What they are empowered to do for a third person the law requires shall be done. The 
power is given not for their benefit but for his. * * * In all such cases it is held that 
the intent of the legislature, which is the test, was not to devolve a mere discretion, 
but to impose a positive and absolute duty." (71 U. S., 4 Wall., 435; 113 Fed., 232, 
237.) 14 J. A. G., 62, Nov. 3, 1908. 

"Where a statute declares that a public officer or public body 'may' have power to 
do an act which concerns the public interests or the rights of third persons, 'may' 
means 'shall,' and the execution of the power may be insisted on as a duty." (Sedg- 
wick, p. 439.) 14 J. A. G., 62-63, Nov. 3, 1908. 

Congress provided that "the Secretary of the Navy is hereby authorized" to 
furnish clothing bounty to apprentices upon enlistment. Question considered was 
"whether that language is mandatory or permissive." The Attorney General said 
(25 Op. Atty. Gen., 272): "In a number of cases decided in the Federal courts, the 
word 'may,' which is practically synonymous with the word 'authorize,' has been 
held to be mandatory and not permissive when embodied in a statute." "The general 
rule is that where Congress confers a power upon an executive officer which involves 
the rights or interests of private individuals or the general public, the language used 
by Congress is considered as imposing a duty rather than a discretion." "In the case 
of the Supervisors v. United States (4 Wall., 435, 445), in which 'may, if deemed 
advisable,' was under consideration, the court said: ' The counsel for the respondent 



STATUTORY CONSTRUCTION AND INTERPRETATION. 603 

insists, with zeal and ability, that the authority thus given involves no duty; that 
it depends for its exercise wholly upon the judgment of the supervisors; and that 
judicial action can not control the discretion with which that statute has clothed 
them. We can not concur in this view of the subject.'" The Attorney General 
concluded: "In my opinion the language used by Congress in the act here under 
consideration is to be construed as imposing " upon the Secretary "an imperative 
obligation and not merely discretionary power." 14 J. A. G., 62-63, Nov. 3, 1908. 

78. Motives of members voting for act. See Statutory Construction and Inter- 

pretation, 84. 

79. " Must." See Statutory Construction and Interpretation, 77. 

80. " Noscitur a sociis." See Words and Phrases. 

81. Object of construction— Is to ascertain the legislative intent. See Statutory 

Construction and Interpretation, 82, 83, 88. 

82. Object to be accomplished by the statute— "A construction of a statute which 

would go beyond the evil intended to be remedied and produce apparently unforeseen 
and untoward results should be avoided." (28 Op. Atty. Gen., 78.) "The object 
to be accomplished at the time of its enactment is of paramount importance in giving 
effect to an act." (43 Ct. CIS., 7.) File 26516-38, J. A. G., Dec. 3, 1910, p. 4. See 
also Statutory Construction and Interpretation, 106. 

83. Same — In one case it was stated by the Judge Advocate General: "After careful 

consideration of the 'object and purpose' of this paragraph of the act, its legislative 
history, including letters on the subject addressed by the department to the Com- 
mittees on Naval Affairs of the House and Senate, the committee hearings thereon, 
the debates and the reports of the committees on conference, in connection with 
established principles of statutorv interpretation applicable thereto, I am of opinion 
* * *." File 28550-3, J. A. G., May 12, 1915, p. 1. 

84 . Opinions—" The opinions of individual legislators as to the object and effect of a statute 

are of little or no weight on questions of construction, and are generally inadmissible. 
Nor may the intention of the draftsman nor the motives of members who voted for 
the act be taken into consideration in its construction." (26 A. & E. Ency. of Law, 
638, 639.) File 24482-34, J. A. G., May 1, 1911, p. 17. 

85. " Or otherwise "—The words "or otherwise" in law, when used as a general phrase, 

following an enumeration of particulars, are commonly interpreted in a restricted 
sense, as referring to such other matters as are kindred to the classes before mentioned . 
This phrase when used as above should receive an ejusdcm generis interpretation. 
File 4924-435, J. A. G., June 20, 1916. See also Ejdsdem Generis. 

86. Paramount duty— "The paramount duty of the judicial interpreter is to put upon the 

language of the legislature, honestly and faithfully, its plain and rational meaning, 
and to promote its object." (Maxwell on the Interpretation of Statutes, 2d ed., p. 
318, quoted approvingly in U. S. v. Lacher, 134 U. S., 624.) File 26260-1392, 26260-697, 
J. A. G., June 29, 1911, p. 19. 

87. Pari materia. See Statutory Construction and Interpretation, 125. 126; Words 

and Phrases. 

88. Penal statutes— "'The object in construing penal, as well as other statutes, is to 

ascertain the legislative intent,' as was said by the Supreme Court of the United SI ates 
(U. S. v. Hart well, 6 Wall., 385, 395) with reference to a statute denning and punishing 
embezzlement by public officers. " File 26260-1392, 26260-697, J. A. G., June 29, 1911, 
p. 18. See also Statutes, 6; Statutory Construction and Interpretation, 15, 
89-92. 

89. Same— "Penal statutes are to be strictly construed." File 26260-1392. 26260-697. 

J. A. G., June 29, 1911, p. 19. 

It is a well settled rule of law that penal statutes and fines and forfeitures imposed 
pursuant thereto should be strictly construed. C. M. O. 17. 1910, S. 

90. Same— "But though penal laws are to be construed strictly, ye1 the intention of the 

legislature must govern in the construction of penal as well as other statutes, and they 
arenottobe construed so strictly as to defeat the obvious intention of the legisla- 
ture." (U. S. v. Wiltberger, 5 Wheat., 76; U. S. v. Morris, 14 Pet., 464; Am. Fur Co. 
v. U. S., 92 Pet., 358, 367.) * * * 

"To the same effect is the statement of Mr. Sedgwick, in his work on Statutorv ami 
Constitutional Law, 2d ed., 2S2: 'The rule that Statutes of this class arete be construed 
strictly, is far from being a rigid or unbending one: or. rat her, it has in modern Times 
been so modified and explained away as to mean little more than that penal pro- 
visions, like all others, are \o be Eairly construed according to the legislative intent 
as expressed in the enactment; the courts refusing, on the one hand, to extend the 



604 STATUTORY CONSTRUCTION AND INTERPRETATION. 

punishment to cases which are not clearly embraced in them, and, on the other, 
equally refusing by any mere verbal nicety, forced construction, or equitable inter- 
pretation to exonerate parties plainly within their scope.' * * * 

"And the reason for the less rigorous application of the rule is well given in Maxwell 
on the Interpretation of Statutes, 2d ed., p. 318, thus: 

" ' The rule which requires that penal and some other statutes shall be construed 
strictly was more rigorously applied in former times, when the number of capital 
offenses was 160 or more; when it was still punishable with death to cut down a 
cherry tree in an orchard, or to be seen for a month in the company of gipsies. But 
it has lost much of its force and importance in recent times, since it has become 
more and more generally recognized that the paramount duty of the judicial inter- 
preter is to put upon the language of the legislature, honestly and faithfully, its 
plain and rational meaning, and to promote its object.'" (17. S. v. Lachef, 134 
U. S., 624, construing a criminal statute.) File 26260-1392, 26260-697, J. A. G., June 
29, 1911, pp. 19-20. 

91. Same — In construing a statute, such as the one under consideration, which is sub- 

stantially a statutory penalty, the statute must receive a strict— that is, a literal- 
construction." (Tiffany v. National Bank of Missouri, 18 Wall., 410.) 

92. Same — "The statute under consideration being penal in its nature must be strictly 

construed, which means in effect that the language is not to be extended so as to 
include persons or things not clearly within its terms." (U. S. v. Lacher, 134 U. S., 
624.)" A statute "in the nature of a penal statute * * * must be construed 
strictly." (20 Comp. Dec, 69.) File 7657-398:1, J. A. G., 

93. Permanent legislation— No clause, phrase, or section of an appropriation act ought 

to be construed as permanent legislation, unless such words are used therein as make 
that purpose clear. See File 24501-26, July 11, 1911. 

94. Same — "Hereafter." See "Hereafter." 

95. Permissive— "It has also been said that statutes which clothe a public body or officer 

with power to perform acts which concern the rights of individuals, even though 
the language of such statutes is permissive merelv, will be construed as being manda- 
tory." (36 Cyc. 1159.) File 26260-1244, J. A. G., Apr. 14, 1911, p. 2. 

96. Plain and unambiguous language. See Statutory Construction and Inter- 

pretation, 62. 

97. Prejudice to public interests. See Statutory Construction and Interpre- 

tation, 46. 

98. Presumption that legislature acted advisedly. See Statutory Construction 

and Interpretation, 124-127. See also File 28550-3, J. A. G., May 12, 1915, p. 2. 

99. Prior enactments on same subject— What is to be determined is the will of the 

legislature, and that will as expressed in the latest enactment is paramount; but on 
all matters in which the will of the latest legislature has not been clearly manifested 
that of all former legislatures must stand. File 13707-38:9. See also Wilcox v. TJ. S. 
(12 Ct. Cls., 495, 502); Mills v. Scott (99 U. S., 25, 28). 
• 100. Proceedings in Congress— "As was said in the case of United States v. Burr (159 
U. S., 85), if the ambiguity were only caused by the meaning of some part or the 
other of the law, it might then be possible to refer to the proceedings in Congress for 
assistance in determining the proper construction. Of course, in adopting such a 
method we are not at liberty to disregard any part of the language of the law as it 
was passed." File 26253-114, J. A. G., Aug. 19, 1910, p. 14. 

101. Prohibitive statutes. See File 26516-49, J. A. G., June 13, 1911, p. 5. 

102. Prospective operation— " In the construction of statutes it is a familiar rule that a 

prospective operation is to be given in every instance unless the legislative intent to 
the contrary is expressed in clear and unambiguous terms or the intent is clearly 
implied from the language used. . Every reasonable doubt should be resolved against 
rather than in favor of the retroactive operation of the statute." (Jasper v. U. S., 
43 Ct. Cls., 371, citing U. S. v. Heth,3Cranch, 399, 413; Chew Heong v. U.S., 112 U.S., 
536, 559; White v. U. S., 191 U. S., 545.) File 17789-25, Sec. Navy, Sept. 9, 1916. 

103. Purpose of interpretation— " The main purpose of interpretation is to ascertain 

and carry into effect the object and purpose of the legislature in making the given 
law as expressed in the language used." (White v. U. S., 191 U. S., 545, 552.) File 
5252-66, J. A. G., May 13, 1915, p. 8. 

104. Reading into the law by construction—" The department is without authority 

to read into the law by construction something not within its terms." File 26260- 
3663:2, Sec. Navy, Oct. 9, 1916. 



STATUTORY CONSTRUCTION AND INTERPRETATION. 605 

105. Reasons for enacting the law. See Statutory Construction and Interpre- 

tation, 82, 106. 

106. Reason or spirit will prevail over letter— The rule is that the reason or spirit of a 

statute will prevail over its letter; "general terms may be restrained by the spirit 
or reason of the statute." (36 Cyc, 1109.) File 26253-200:1, J. A. G., Feb. 17, 1912, 
p. 8. 

The court in Wilkes v. Dinsman (7 How. 88) "considered the spirit and reason 
of the law in its opinion and held it to include marines because in the body of the 
act the language was 'any person enlisted for the Navy' and not 'seamen,' or other 
term which would necessarily be limited to the Navy proper." File 5252-66, J. A. 
G., May 13, 1915, p. 2. 

"It is always permissible to consider the purpose and the spirit of the law and the 
object which it was intended to accomplish as indicated not only by the language 
used in the statute, but by other recognized aids to interpretation." File 5252-66, 
J. A. G., May 13, 1915, p. 6. 

107. Reenactment of words. See Statutory Construction and Interpretation, 

125-128. 

108. Repeal— The general principle to be applied to the construction of acts of Parliament 

is that a general act is not to be construed to repeal a previous particular act, unless 
there is some express reference to the previous legislation on the subject, or unless 
there is a necessary inconsistency in the two acts standing together. (Thorpe v. 
Adams, L. R. 6 C. P., 135.) Approved by the Supreme Court of the United States 
in Ex parte Crew Dog (109 U. S., 370), and finds expression in the well-established 
rule of statutory construction, generalia specialibus non derogant. File 4051-3, J. A. 
G. , July 1, 1909, p. 2. See also Statutory Construction and Interpretation, 115. 

109. Repeal by implication — "The conclusion that a statute is repealed by implication 

is only reached where there is irreconcilable conflict, and when the two statutes can 
not by reasonable construction stand together." (21 Op. Atty. Gen., 184; 24 Op. 
Atty. Gen., 562; 25 Op. Atty. Gen., 113.) 

"Implied repeals of laws are not favored, and where the true construction of the 
later legislation is doubtful, the doubt should be resolved against any construction 
which revolutionizes existing systems of administration." (23 Op. Atty. Gen., 411.) 

"It is a fundamental and familiar rule that a repeal by implication is never held 
to take place unless there is an irreconcilable repugnancy between the earlier and later 
acts, and that if by any permissible construction, both may stand and be enforced, 
there is no such repeal." (29 Op. Atty. Gen., 110.) [File 28687-14, J. A. G., Dec. 14, 
1916, p. 3.] 

"Statutes which apparently conflict with each other are to be reconciled, as far 
as may be, on any fair hypothesis." (Beals v. Hale, 4 How., 37, 51.) 

"If both can exist, the repeal by implication will not be adjudged." (Johnson v. 
Brown, 205 U. S., 321.) 

"Every doubt should be resolved against a construction which would work an im- 
plied repeal, and it is not to be admitted unless the implication is so clear as to be 
equivalent to an explicit declaration." (Osborn v. Nicholson, 13 Wall., 654, 662.) 
[File 28687-14, J. A. G., Dec. 14, 1916, p. 3.] 

"The general presumption is that if a repeal was intended, it would have been 
expressly declared; and such is the usual practice of legislation." (U. S. v. Clothes, 
Crabbe, 370, 28 Fed. Cas. No. 16, 563; 9 Op. Atty. Gen., 47.) 

"Where two acts are in apparent conflict, and one of the acts is general and the 
other special, the rule is that the special act will be construed as an exception to the 
provisions of the general, and both acts thus given effect." (36 Cyc, 1151, 1152.) 
File 28687-1. 

The rale is well settled that repeals by implication are not favored and will never 
be sustained if it is possible to give the legislation a different interpretation. File 
3973-106, J. A. G., Feb. 8, 1915. 

110. Retroactive construction— " It is a principle which has always boon held sacred in 

the United States, that laws by which human act ion is to be regulated . looks forward, 
not backwards; and are never to be construed retrospectively, unless the language 
of the act shall render such construction indispensable." (Reynolds r. MeArthur. 
2 Pet., 434.) File 7657-399:4, Oct., 1916. See also Statutory' Construction and 
Interpretation, 102. 



606 STATUTORY CONSTRUCTION AND INTERPRETATION. 

111. Same— " Whereas statutes generally are not to be construed retroactively unless the 

intention that such construction be given them is very apparent, a prospective opera- 
tion is to be given to a statute unless the legislative intent to the contrarv is unam- 
biguously expressed or is clearly implied. (Jasper ». U. S., 43 Ct. Cls., 368^ and cases 
there cited; 19 Comp. Dec. 487.)" File 7657-399:4, Oct. 1916. 

112. Revision of statutes -In a revision of statutes all the different parts must be construed 

together with a view to harmonizing them if possible, and giving effect to each. The 
different sections should be regarded, not as prior and subsequent acts, but as si- 
multaneous expressions of the legislative will. (36 Cyc, 1167; Groff v. Miller, 20 
App. D. C, 353.) 16 J. A. G., 73. 

113. Several statutes relating to same subject^They are all to be considered together 

and one part compared with another in the construction of any one of the material 
provisions: If the language will reasonably admit of it the acts, or sections in this 
case, are to be construed so as to permit both to stand together and remain in full 
force (Pollard v. Kibbee, 14 Pet., 353,366; The Strathairly, 124 U. S., 558, 579; Nobles v. 
Georgia, 168 U. S., 398, 404: Cherokee Intermarriage Cases, 203 U. S., 76.)" 16 J. A. 
G., 72, Nov. 2, 1911. 

114. "Shall" and "may." See Statutory Construction and Interpretation, 76, 77. 

115. Special and general provisions — To the extent of any necessary repugnance between 

a special and a general provision, the special will prevail over the general. And 
where the general is later, the special will be construed as remaining an exception 
to its terms. (30 Cyc, 1151.) 16 J. A. G., 73. 

"It is * * * one of the best settled rules of construction that a prior specific 
statute is not to be treated as repealed by a later general law unless the two can not 
possibly be construed so as to stand together." File 28687-1, J. A. G., Aug. 18, 1916, 
p. 3. See also Statutory Construction and Interpretation, 108. 

116. Same — Where one statute conferred a limited jurisdiction over offenses generally and 

another a larger jurisdiction as to certain specified ones, the two could stand together, 
one as the law of the general subject and the other the law of the particular offense. 
(State v. Stanley, 82 Vt., 37.) 16 J. A. G., 73. 

117. Same— That the details of one part may contain regulations restricting the extent of 

general expressions used in another part of the same act, are among the plain rules 
laid down bv common sense for the exposition of statutes. (2 Cranch, 52.) File 
11130-2b, J. A. G., July 31, 1909, p. 5. 

118. Spirit and purpose of statute — Should not be lost sight of in a strict adherence to 

its letter. See Statutory Construction and Interpretation, 106. 

119. Stare decisis. See Stare Decisis; Statutory Construction and Interpretation, 

66; Words and Phrases. 

120. Strict construction. See Statutory Construction and Interpretation, 15. 

121. Title of a statute — The title of a statute althoughnot properly a part of the law may be 

resorted to in case of doubt as a source of information in interpreting language used 
in the act. File 5621, Nov. 17, 1906. See also File 5252-66, J. A. G., May 13, 1915, p. 7. 

122. Uniform construction. See Statutory Construction and Interpretation, 13. 

123. Whole, law must be construed as a whole—" We are not at liberty to construe any 

statute so as to deny effect to any part of its language. It is a cardinal r nle of statutory 
construction that significance and effect shall, if possible, be accorded to every word. 
As early as in Bacon's Abridgment it was said that 'a statute ought, upon the whole, 
to be so construed that, if it can be prevented, no clause, sentence, or word shall be 
superfluous, void, or insignificant'; this rule has been repeated innumerable times." 
(Washington Market Co. v. Hoffman, 101 U. S., 115.) File 26253-114, J. A. G., Aug. 
19, 1910, p. 13. 

" Where possible to do so effect must be given to all the provisions of a law." File 
28687-9, J. A. G., Oct., 1916. 

124. Words, meanings of — "Where the language of a statute is unambiguous the popular, 

or ordinary, meanings of words should be employed." File 5252-27, J. A. G., June 23, 
1909, p. 2. 

"Authority is found in decisions of the Supreme Court for giving a different meaning 
to the same word in different parts of a statute where such appears to have been the 
legislative intent. (See Cherokee Nation v. Georgia, 5 Pet. 1, 19.)" File 26521-144:1, 
Sec. Navy, July 10, 1916, p. 4. 

125. Words reenacted— Words in a subsequent act are to be given the recognized meaning 

they had in a former act in pari viat< ria in the absence of anything to show a contrary 
intent, and judicial decisions construing one of such acts form a sound rule of con- 
struction for the other. (A. & E. Ency. Law, vol. 26, p. 611.) File 26254-60, J. A. G., 
July 1, 1908, p. 2. 



STATUTORY CONSTRUCTION AND INTERPRETATION. 607 

In the absence of any indication of a contrary intent, must be given the same con- 
struction as they received in the former act. File 26521-144:1, Sec. Navy, July 10, 1916, 
p. 4. 

126. Same — "If it can be gathered from a subsequent statute in pari materia what meaning 
the legislature attached to the words of a former statute, they will amount to a legis- 
lative declaration of its meaning, and will govern the construction of the first statute." 
File 26280-61. 

127. — Same — Congress is presumed to have known what construction has been placed upon 
language used by it in a statute and when the same language is used again in a sub- 
sequent statute on the same object, without any indication of a contrary intent, 
it should be given the same construction as it received in the former act. (18 Wall., 
553, 584.) This rule applies to language which has been construed in decisions of 
the Supreme Court and the Court of Claims (95 U. S., 416), and also to the construction 
placed upon a law in practice by the proper administrative officers. See 21 Op. Atty. 
Gen., 410, where the Attorney General said in part: 

"The weight to be given to a departmental practice is greatly increased when Con- 
gress, in reenacting the law, fails to indicate in any way its disapproval of the settled 
construction, to which it is thus regarded as giving an implied approval. (18 Opin., 
• 532; 20 Opin., 721; 2 Comp. Dec, 100.) The opinions just cited are those of executive 
officers only and the first of them has been referred to with apparent approval by the 
Supreme Court." File 3980-1075, J. A. G., Apr. 9, 1915. 

128. Same — "The construction placed upon this statute is presumed to have been known 
to Congress and adopted by that body in its enactment of the Navy law in almost 
the identical language with the prior Army law on the same subject without any 
indication of a contrary intent, and it should be given the same construction as it 
received in the former act. (Sewing Machine Co's case, 18 Wall., 553; 21 Op. Atty. 
Gen., 339, 352, 410; 15 Op. Atty. Gen., 646; Valk v. U. S., 28 Ct. Cls., 241; Jonas v. U. S., 
50 Ct. Cls., 281; U. S. v. Hermanos, 209 U. S., 337; U. S. v. Falk, 204 U. S., 143.)" File 
7657-399:4, Oct., 1916. 

129. Same— There is always a presumption that the legislature in enacting a statute is 

familiar with the provisions of existing law. File 26251-169, J. A. G., Nov. 28, 1916, 
p. 8. 

130. Same— Congress is presumed to know what construction has been placed on language 

used by it in a statute, and when the same language is used again, in a subsequent 
statute on the same subject, without any indication of a contrary intent, it should be 
given the same construction as it received in the former act. (Sewing Machine Co.'s 
case, 18 WaU. 553, 584.) File 26510-1022:4, J. A. G., Dee., 1916. 

STATUTORY INTENT. See Intent, 50. 
STATUTORY SENTENCES. 

1. Conform to— It is a general rule, where the punishment for a crime is fixed by statute 

the punishment inflicted must conform thereto, and a judgment which does not so 
conform is erroneous, and this whether the crime is a statutory one or a common-law 
offense for which the punishment has been changed by statute. According to the 
prevailing doctrine, this is so though the departure from the provisions of the statute 
is a mitigation of the prescribed penalty. C. M. O. 21, 1910, 17; 1, 1911, 3. 

2. Deck courts. See Deck Courts, 51, 56. See also Statutory Sentences, 4, 5. 

3. Mandatory— In all cases where the statute has designated a penalty for a particular 

offense, none other than that particular penalty may be imposed, and the court must 
pronounce the sentence which the law requires whenever the fact is proved. (R-814.) 

4. Summary courts-martial— And deck courts can not legally impose sentences which 

are not specifically provided for by statute. C M. O. 2, 1912, 4-11; 33, 1914, 4. 

5. Same — The Cyclopedia of Law and Procedure (v. 12, p. 783), under the subject of erro- 

neous sentences, after discussing various forms of error, states that "other eases hold 
that any departure in the sentence from the express terms of the statute, whether as 
to the form or the extent of the punishment, is error; and such is the uniform rule in 
the Federal courts." 

A number of State, Federal, and English cases are cited in support of the foregoing 
statement, from which cases the following extracts may l>e given: 

In the case of In re Johnson (46 Fed. Rep., 477, 481) the petitioner sought release 
on a writ of habeas corpus, and alleged, among other things, an erroneous sentence. 
The statutory punishment for the offense— perjury -was (see. 5392, U. S.): 

"A fine of not more than $2,000, and by imprisonment at hard labor, not more 
than five years." 

50756°— 17 39 



§08 STATUTORY SENTENCES. 

The sentence was for six months and without hard labor, and with respect to this 
matter the court said: 

"It was held by the Supreme Court in Ex parte Karstendick (93 U. S., 396) that 
in cases where the statute makes hard labor a part of the punishment, it is imperative 
upon the court to include that in the sentence. "* * * Here hard labor was not 
made a part of the sentence, though expressly required by the statute." There was 
another error in the sentence which, however, is not material here, and upon the 
whole matter the court concluded as follows: 

"It is impossible to escape the conclusion that the district court exceeded its au- 
thor it v in sentencing the prisoner to the reformatory prison for six months onlv, 
without hard labor, and that she is entitled to be discharged from imprisonment 
under the sentence." 

The next case is that of Harman v. United States (50 Fed. Rep., 921). In that case 
the defendant was convicted and sentenced to " be imprisoned in the Kansas State 
penitentiary for five years and that he pay a fine of $300." 

With respect to this sentence the court said (/&., 922): 

"The act of Congress provides that persons convicted of its violation 'shall be 
deemed guilty of a misdemeanor, and shall for each and every offense be finedmot 
less than S100 nor more than 85,000 or imprisonment at hurd labor not less than 
one year nor more than 10 years, or both, at the discretion of the court.' It will be 
observed that where the punishment, or any part of it, is imprisonment, it must be 'at 
hard labor.' The plaintiff in error was sentenced 'to be imprisoned in the Kansas 
State penitentiary for five years, ' and hard labor is not made a part of the punishment . 
as the statute requires shall be done, where imprisonment forms any part of the 
sentence. "W "hen the statute makes hard labor a part of the punishment, it is im- 
perative upon the court to include that in its sentence. * * * In the courts of 
the United States the rule is that a judgment in a criminal case must conform strictly 
to the statute, and that any variations from its provisions, either in the character 
or extent of the punishment inflicted, renders the judgment absolutely void." 

In Woodruff v. United States (58 Fed. Rep., 766, 767) the court said: 

"It will be observed that the act under which the defendant was indicted declares 
that one convicted of the offense therein charged shall ' be imprisoned for not less than 
six months nor more than 10 years, and be fined in a sum equal to the amount em- 
bezzled.' The sentence in this case was one of imprisonment only, and not impris- 
onment and fine, as required by the statute. In the courts of the United States 
the rule is well settled that a judgment in a criminal case must conform to the require- 
ments of the statute, and that any variation therefrom, either in the character or 
extent of the punishment inflicted, avoids the judgment." 

The case of United States v. Harman (68, Fed. Rep., 472) discloses the further pro- 
ceedings, taken in that case in accordance with law, after the case had been remanded 
by the circuit court in Harman v. United States (supra). The lower court pronounced 
sentence as follows: 

"That he be imprisoned, at hard labor, in the penitentiary of the State of Kansas 
for one year and one day from this date." 

It will be seen that the court in resentencing the defendant was careful to include 
the requirement that the confinement should be performed at hard labor, as the statute 
required. 

The foregoing cases were such as involved the omission of a material part of the 
lawful sentence, but the case of In re Mills (135 U. S., 263) is one in which the sentence 
imposed included more than could lawfully be adjudged. In that case the accused 
was indicted under two different statutes of the United States, pleaded guilty to both 
offenses, and was sentenced in one case "to be prisoned in the Ohio State prison, at 
Columbus, for the term and period of one year, and pay to the United States a fine 
of one hundred dollars, and its costs expended." 

In the other case it was adjudged that the accused "be imprisoned in the same 
penitentiary for the period of six months, and pay to the Government a fine of S50, 
together with its costs; also, that this term of imprisonment commence and date 
from the expiration of the term of one year, for which he was sentenced in the other 
case." 

After reviewing the statutes bearing upon the matter the court said (ibid, 270): 

"A sentence simply of 'imprisonment/ in the case of a person convicted of an 
offense against the United States— where the statute prescribing the punishment 
does not require that the accused shall be confined in a penitentiary — can not be 
executed by confinement in a penitentiary, except in cases in which the sentence is 



STATUTORY SENTENCES. 609 

'for a period longer than one year.' In neither of the cases against the accused was 
he sentenced to imprisonment for a period longer than one year. In one case, the im- 
prisonment was 'for the term and period of one year'; in the other, 'for the term and 
period of six months.' There is consequently no escape from the conclusion that the 
judgment of the court sentencing the petitioner to imprisonment in a penitentiary, 
in one case for a year and in the other for six months, was in violation of the statutes 
of the United States. The court below was without jurisdiction to pass any such 
sentences, and the orders directing the sentences of imprisonment to he executed in 
a penitentiary are void. This is not a case of mere error, but one in which the court 
below transcended its powers." 

In Ex parte Lange (18 Wall., 163) the petitioner was indicted for certain offenses 
against the Post Office Department; he was found guilty and the punishment for 
his offense as provided by statute was 'imprisonment for not more than one year 
or a fine of not less than $10 nor more than $200." The petitioner, under such con- 
viction, was sentenced "to one year's imprisonment and to pay $200 fine." Later, 
at the same term of court and the same judge presiding, the prisoner was brought 
before the court on a writ of habeas corpus and an order was rendered vacating the 
former judgment and the prisoner was again sentenced to one year's imprisonment 
from that date. 

The petitioner sued out a writ of habeas corpus, alleging that he was unlawfully 
imprisoned. At the hearing the writ was discharged and Lange was remanded, 
whereupon he sued out a petition for writs of habeas corpus and certiorari in the 
Supreme Court. In the court's opinion the cases were reviewed at length and it 
held, quoting from the syllabus: 

"When a court has imposed fine and imprisonment, where the statute only con- 
ferred power to punish by fine or imprisonment, and the fine has been paid, it can 
not, even during the same term, modify the judgment by imposing imprisonment 
instead of the former sentence." 

The court said (ibid., 176): 

"We are of opinion that when the prisoner, as in this case, by reason of a valid 
judgment, had fully suffered one of the alternative punishments to which alone the 
law subjected him, the power of the court to punish further was gone. That the 
principle we have discussed then interposed its shield and forbid that he should 
be punished again for that offense. The record of the court's proceedings, at the 
moment the second sentence was rendered, showed that in that very case and for that 
very offense the prisoner had fully performed, completed, and endured one of the 
alternative punishments which the law prescribed for that offense and had suffered 
five days' imprisonment on account of the other. It thus showed the court that its 
power to punish for that offense was at an end. Unless the whole doctrine of our 
system of jurisprudence, both of the Constitution and the common law, for the pro- 
tection of personal rights in that regard are a nullity, the authority of the court to 
punish the prisoner was gone. The power was exhausted; its further exercise was 
prohibited. It was error, but it was error because the power to render any further 
judgment did not exist." 

In the case of In re Bridgeon (57 Fed., 200) the petitioner was indicted for horse 
stealing in Indian Territory. He was tried, convicted, and sentenced "to be impris- 
oned in the penitentiary at Columbus, Ohio, at hard labor for the term of five years 
and to pay the cost of prosecution." 

The statute applicable in that case provided that any person convicted of horse 
stealing in the said Territory should be punished "by a fine of not more than $1,000 
or by imprisonment not more than 15 years, or by bo'th such fine and imprisonment 
at the discretion of the court." 

It will be noted that the statute here docs not provide for imprisonment at hard 
labor and that the sentence was "imprisonment at hard labor for Ave years," while 
the statute provides for "imprisonment not more than 15 years." In granting a 
writ of habeas corpus the court said: 

"The general rule, as stated by Justice Field In re Graham (138 U. S.. 462; 11 Sup. 
Ct. Rep., 363), is 'that a judgment rendered by a court in a criminal case must con- 
form strictly to the statute, and that any variation from its provisions, either in the 
character or the extent of punishment inflicted, renders the judgment absolutely 
void.' Accordingly, it was held in Barman v. United States (50 Fed. Rep.. 921) 
that where the penalty provided by a statute was imprisonment at hard labor and 



610 STATUTORY SENTENCES. 

the sentence was imprisonment, hard labor not being made part of the punishment, 
the sentence was void. (See also Ex parte Karstendick, 93 XT. S., 396: In re Mills, 
135 U. S., 263, 10 Sup. Ct. Rep., 762: and In re Johnson, 46 Fed. Rep., 477.)" 

The last several cases as stated above are such as involve punishment in excess of 
that authorized to be adjudged. 

In Whitworth v. United States (114 Fed. Rep., 302, 304) the court said: 

"The penalty prescribed by section 4046, Revised Statutes, for the commission of 
the crime charged in the first count of the indictment was that the culprit should 'b» 
imprisoned for not less than 6 months nor more than 10 years and be fined in a sum 
equal to the amount embezzled.' The judgment against the defendant for tins 
offense was that he should be imprisoned for three years, that he should pay a fine 
equal to the amount embezzled and also the cost of the prosecution of this case.and 
that he should stand committed until the fine and costs were paid. This judgment 
was erroneous. The statutes gave to the court below no power to add to the fine 
prescribed by the act of Congress the cost of the prosecution of the case. In many 
instances where, as in the case at bar, the amount embezzled was small the costs 
would far exceed the amount of the fine fixed by law. In the national courts a judg- 
ment in a criminal case must conform strictly to the act of Congress which authorizes 
it. Any departure from the statute in the extent or character of the punishment 
adjudged constitutes an error which is fatal to the judgment." (Citing cases.) 

(See also In re Christian, 82 Fed Rep., 199; Gardes v. United States, 87 Fed. Rep., 
172; Haynes v. United States, 101 Fed. Rep., 817; Jackson v. United States, 102 Fed. 
Rep., 473; In re Bonner, 151 U. S., 242.) 

The following decisions of the State courts also bear upon the subject: 

On a conviction of grand larceny, or knowingly receiving stolen goods of value 
greater than S100 (Rev. Code, sees. 3706, 3710), the court has no authority to sentence 
the prisoner to imprisonment in the county jail, since the statute only prescribes 
imprisonment in the penitentiary. (De Bardelaben v. State, 50 Ala., 179.) 

Under an ordinance providing that any person carrying concealed weapons shall 
be fined or imprisoned in the city prison, or both fined and imprisoned, a judgment 
that an offender pay a fine, and, in case of its nonpayment, be imprisoned in the 
county jail, is void as to the imprisonment, as the ordinance does not authorize 
imprisonment in the county jail. In re Sylvester, 81 Cal., 199; 22 Pac.) 

A municipal ordinance which provides that a person convicted of a certain offense 
shall be fined not exceeding $500, and may be imprisoned for a period not exceeding 
60 daj-s, or both, does not authorize a sentence to "pay a fine of S100, or perform 60 
days' work on the public streets" of the city. 

The latter clause of the sentence is not authorized by the imprisonment clause of 
such ordinance, nor by an ordinance authorizing the major or president of the 
municipality to commit to the city prison or workhouse or place of correction, for a 
period to be determined by such mayor or president, but not to exceed 60 days, any 
convict failing to pay a fine, penalty, or forfeiture imposed under any cit j< ordinance. 
(Ex parte Martini, 23 Fla., 343; 2 South., 689.) 

Under Revised Statutes, 1879, section 1262, which fixes the punishment at imprison- 
ment in the penitentiary for a period not exceeding 10 years, a defendant can not be 
awarded a less degree of punishment than that of imprisonment in the penitentiary. 
(State v. Jones, 86 Mo., 623.) 

Jails and workhouses are, and in the State legislation are treated as, entirely dis- 
tinct in their origin, object, and government. Therefore, authority to a justice of 
the peace to commit to the workhouse will not authorize a committal to the common 
jail. (State v. Ellis, 26 N. J. Law (2 Dutch.), 219.) 

Within the act June 10, 1879, "to prescribe, apprehend, and punish disorderly 
persons," sentence to imprisonment in the county jail is illegal and void, for the statute 

Provides only for imprisonment in the workhouse. (Fairbanks v. Sheridan, 43 N. J. 
,aw (14 Vroom), 484.) 

Where the statutory penalty for murder in the first degree is death, and the jury 
return a verdict of guilty, the trial court has no power to pass sentence of imprison- 
ment. (Territory v. Griego, 42 Pac, 81— N. Mex.) 

Where a new offense is created by statute, and a penalty provided for it, no other 
punishment can be imposed. (Renwick v. Morris, 7 Hill. 575— N. Y.) 

Acts 1885, chapter 248, providing that one convicted of seduction under promise 
of marriage "shall be fined or imprisoned," at the discretion of the court, does not 
authori7e the imposition of both fine and imprisonment. (State v. Crowell, 116 
N. C, 1052; 21 S. E., 502.) 



STATUTORY SENTENCES. 611 

Where the statute provides for imprisonment and fine, or for imprisonment with- 
out fine, fine without imprisonment is not authorized. (Johnson v. State, 18 Tex. 
App., 7.) 

A sentence, different from that intended by statute, is error, even if less severe 
than the sentence prescribed. (Haney v. State, 5 Wis., 529.) 

Under constitution, 1868, article 1, section 19, which limits the jurisdiction of justices 
in criminal cases to offenses in which the punishment does not exceed a fine of $100, 
or "imprisonment" for 30 days; and act December 24, 1892 (21 Stat. L,., p. 93), which 
limits the punishment for the offense of carrying a concealed deadly weapon to a fine 
not exceeding $100, or "imprisonment" not exceeding 30 days — a trial justice has no 
power to require a person convicted of such offense to be imprisoned and perform 
hard labor for 30 days. (State v. Williams, 40 S. C, 373; 19 S. E., 5.) 

Under General Statutes, section 4697, providing that one guilty of a misdemeanor 
not enumerated by statute shall be punished by imprisonment, a court can not 
require a defendant guilty of forcible entry to give bond to keep the peace and in 
default thereof to adjudge that he be imprisoned. (Ex parte Webb, 51 Pac, 1027; 
24 Nev., 238.) C. M. O. 2, 1912, 5-11. 

STEALING. See Theft. 

STEALING AND UNLAWFULLY SELLING PROPERTY OF THE UNITED 
STATES, FURNISHED FOR THE NAVAL SERVICE THEREOF, IN VIO- 
LATION OF ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT 
OF THE NAVY. 

1. Warrant officers— Charged with. C. M. O. 34, 1909; 35, 1909. 

STEALING PROPERTY OF THE UNITED STATES FURNISHED AND IN- 
TENDED FOR THE NAVAL SERVICE THEREOF. 

1. Enlisted men— Charged with. C. M. O. 25, 1914, 3. 

STEERAGE STEWARD. 

1. General court-martial— Tried by. C. M. O. 42, 1883. 

STENOGRAPHERS. 

1. Oaths— Stenographer should be sworn at the proper time. C. M. 0. 21, 1910, 9; 23, 1910, 7. 

2. Statement of accused. See Statement of Accused, 5. 

STEPSON. 

1. Stepfather— Stepson does not necessarily take the name of stepfather. See Name, 
Change of, 11. 15. 

STOLEN OR PAWNED PROPERTY OF THE UNITED STATES. 

1. Recovery of. See Public Property, 7. 

STORAGE BATTERIES OF SUBMARINES. C. M. O. 41, 1915. 
STRAGGLERS. See C. M. O. 153, 1897, 2; 10, 1907; 37, 1909. 

STRIKE OUT. 

1. Charges and specifications— By court. See Charges and Specifcations, 95. 

STRIKING ANOTHER PERSON IN THE NAVY. 

1. Officer charged with. C. M. O. 29, 1890. 

STRIKING IS AN ASSAULT. See Assault, 26. 

STUBBORN COURT. C. M. O. 104, 1897, 5-6. See also Criticism or Courts-Martial, 
35,43. 

STUDENT FLYERS. See File 28687-9, J. A. G., Oct., 1916. 

SUBIG BAY NAVAL RESERVATION. See Jurisdiction, 94-96; Appeals, 20. 

SUBMARINES. 

1. Death gratuity— Paid when submarino submerged for two and one-half months. S« 

Death Gratuity, 24. 

2. Inspection of— Officer tried by general court-martial for neglect of duty. C M. O. 

41, 1915. 

3. Precautions— Against accident in handling gasoline. C. M. O. 26, 1905. 



612 SUMMARY COURTS-MARTIAL. 

"SUBMERGED AND UNMARKED WRECK." C. M. 0. 29, 1916. 

SUBP(ENAS. See also Summons. 

1. Civil authorities — Service of subpoenas by civil authorities on persons in the naval 

service. See General Order Xo. 121, Sept. 17, 1914, 23. 

2. Civil court — Officer arrested by civil authorities for disregarding subpoena. Tried 

by general court-martial on charge of "Scandalous conduct tending to the destructioa 
of good morals." C. M. O. 24, 1883. 

3. Marshall, United States— Obligation of United States marshal to serve subpoenas 

for witnesses before general court-martial on request of judge advocate. Department 
of Justice complied with request and Navy Department agreed to pay any expenses 
involved, fees, etc. File 26251-12193:3, Aug. 16, 1916. 

SUFFERING A PRISONER TO ESCAPE. 

1. Enlisted man— Charged with. C. M. O. 50, 1889. 

SUFFERING A VESSEL, OF THE NAVY TO BE HAZARDED, IN VIOLATION 
OF SECTION 11, ARTICLE 8, OF THE ARTICLES FOR THE GOVERN- 
MENT OF THE NAVY. 
1. Officer— Charged with. C. M. O. 76, 1895. 

SUFFERING A VESSEL OF THE NAVY TO BE RUN UPON A SHOAL AND 
HAZARDED. 

1. Officer— Charged with. C. M. O. 80, 1905; 82, 1905. 

SUFFERING A VESSEL OF THE NAVY TO BE STRANDED, ETC. 

1. Specific intent— Not required. See Intent, 2. 

SUFFICIENCY OF EVIDENCE. See Criticism of Courts-Martial, 14. 

SUICIDE. 

1. Attempted suicide — Charged under "Scandalous conduct tending to the destructioa 

of good morals." C. M. O. 9, 1916, 3; G. C. M. , Rec. 23659. 

2. Indexing— Assigned as a cause of suicide. See Index, 8. 

3. Line of duty and misconduct. See Line of Duty and Misconduct Construed 

89-100. 

4. Nostalgia— Suicide caused bv. See Nostalgh.. 

5. Threatening suicide. See C. M. O. 60, 1888, 2. 

SUMMARY COURTS-MARTIAL. 

1. Accused— Because the summary court-martial sentence involving extra police duties 

was considered illegal by the senior officer present and set aside by the Secretary 
of the Navy, does not relieve the accused from responsibility when he refuses to obey 
the order of his superior officer. C. M. O. 87, 1896. 

2. Army summary court— No jurisdiction over Marines on an Army transport. See 

Army, 7. 

3. Arraignment. See Arraignment, 32. 

4. Authentication— The sentence of the court shall be signed bv all the members and 

by the recorder. (R-620 (1).) 

After the proceedings in a trial have been completed and recorded they shall be 
signed by the senior member and the recorder. (R-620 (2).) See Court, 149. 
A record of proceedings of a summary court-martial was returned for the second 
-signature of the senior member. File 3107S-S. C. M., J. A. G., May 16, 1902- 20 
J. A. G. 210. 

A record of proceedings was returned for the signature of the recorder. File 31395- 
S. C. M., J. A. G., June 27, 1902; 20 J. A. G. 396. 

5. Bad conduct discharges. See Bad Conduct Discharge, 10, 11. 

6. Binding of records. See Blndtng of Court-Martial Records. 

7. Boatswain— Actually in command of a naval vessel may convene, but he is not eligible 

to sit as a member of a summary court-martial. See Boatswains, 10, 11. 

8. Bread and water. See Bread and Water. 

9. Challenges. See Challenges, 20. 

10. Charges— The accused was tried by summary court-martial. The alleged offenses 
were set forth as charges with specifications thereunder, similar to the method used 
in general courts-martial. 



SUMMARY COURTS-MARTIAL. 613 

When an accused is tried by summary court-martial, charges should not be used. 
The offense should be set forth in one specification and, if there is more than ona 
offense, separate specifications should be used to set forth each offense. (Navy 
Regulations, 1913, R-608 (1); Forms of Procedure, 1910, pp. 156, 166-172.) 

In view of the fact that the error in this case is one of procedure and does not render 
the trial illegal, the department did not disapprove the proceedings and sentence. 
File 26287-2996, Sec. Navy, June 14, 1915; C. M. O. 22, 1915, 6. 

11. "Commandant of marine barracks" — Doubtless the word "commandant" is 

used in the statute (art. 26, sec. 1624, R. S.) in a broad sense, as the equivalent of 
"commanding officer"; the meaning of the two forms being substantially the same; 
and it is appropriate to employ, in signing summary court-martial specifications, 
the title "commandant, marine barracks", such being the precise language of the 
statute. File 1192-1, Sec. Navy, Mar. 21, 1905. 

12. Commanding officers — May convene only summary courts-martial and deck courts 

for trial of enlisted men under their command. See Commanding Officers, 42. 

13. Conduct records — If the court finds the specification proved, or proved in part, and 

the recorder has stated that he has evidence of previous convictions, it shall, after 
arriving at such finding, open and, the accused being present, the recorder shall 
introduce evidence of previous convictions, and also the conduct record, if the latter 
is desired by the court. (R-617 (1)). 

The conduct record of the accused during his current enlistment may be received 
in evidence between the finding and sentence under the same conditions as those 
prescribed for evidence of previous convictions. (R-616 (3)). See C. M. O. 96, 1898. 

14. Confinement. See Confinement, 40, 41. 

15. Constitution of— A summary court-martial shall consist of three officers not below 

the rank of ensign, as members, and of a recorder. The commander of a ship may order 
any officer under his command to act as such recorder. (A. G. N. 27.) C. M. O. 
14, 1911, 8. 

16. Contempt of court. See Contempt of Court, 5, 6. 

17. Convening authority— May reprimand members or bring them to trial by court- 

martial. See Criticism of Courts-Martial, 35,36. 

18. Convening autnority as member— It is decidedly improper, though not illegal, 

for a convening authority to detail himself as a member of a summary court-martial 
and then subsequently to act upon the case in the capacity as convening authority. 
Case disapproved where this was done. File 26287-389; 26287-963. But see File 
26287-1185 where department did not disapprove. 

19. Convening authority disapproves— Necessary action of senior officer present— The 

convening authority disapproved the proceedings and sentence and stated in his 
action that the accused "will be released and restored to duty." This action was 
contrary to Navy Regulations, 1913, R-1830 (Navy Regulations, 1913, R-622 (8), 
which reads, "In cases where the accused has been acquitted by the court, or where 
the sentence has been disapproved by the convening authority, the record of pro- 
ceedings shall be submitted to the senior officer present in the same manner as though 
a sentence requiring action still remained." This action of the convening authority 
in releasing the accused from arrest was improper, since by so doing be deprived his 
superior officer of the right, secured to him by the Navy Regulations of dealing with 
the case. Had he not released the accused and restored him to duty, the senior officer 
present might have returned the record to the court for revision or reconsideration 
of the sentence. File 1192-1, Sec. Navy, Mar. 21, 1905. 

20. Convening authority's power over sentence— The convening authority can not 

dictate what sentence shall be imposed, nor can he add to the punishment "adjudged. 
If he deems the sentence inadequate his power over it is limited to disapproval. See 
Criticism of Courts-Martial, 35,36. 

21. Convening of— Summary courts-martial may be ordered upon petty officers and 

persons of inferior ratings, by the commander of any vessel, or by the" commandant 
of any navy yard, naval station, or marine barracks to which they belong, for the 
trial of offenses which such officer may deem deserving of greater punishment than 
such commander or commandant is authorized to inflict, but not sufficient to require 
trial by a general court-martial. (A. G. N. 26.) File 39S0-1075, J. A. c< ., Apr. 6. 1915. 

22. Same— Summary courts-martial may be ordered upon enlisted men in the naval 

service under his command by the commanding officer of any brigade, regiment, or 
separate or detached battalion, or other separate or detached" command, and. when 
empowered by the Secretary of tho Navy, by tho commanding oilicer or officer in 
charge of any command not specifically entioned in the foregoing; Prodded, That. 



614 SUMMARY COURTS-MARTIAL. 

when so empowered by the Secretary of the Navy to order summary courts-martial 
the commanding officer of a naval hospital or hospital ship shall be empowered to 
order such courts and deck courts, and inflict the punishments which the commander 
of a naval vessel is authorized by law to inflict, upon all enlisted men of the naval 
service attached thereto, whether for duty or as patients. 

No sentence of a summary court-martial shall be carried into execution until the 
proceedings and sentence have been approved by the officer ordering the court, or 
his successor in office, and by his immediate superior in command: Provided, That 
if the officer ordering the court, or his successor in office, be the senior officer present 
such sentence may be carried into execution upon his approval thereof. (Act of 
Aug. 29, 1916, 39 Stat. 586.) C. M. O. 30, 1916. See also Summary Courts-Martial 
38, for definition of "Immediate Superior in Command." 

"Hereafter all officers of the Navy and Marine Corps who are authorized to order 
either general or summary courts-martial may order deck courts upon enlisted men 
under their command, and shall have the same authority to inflict minor punish- 
ments as is conferred by law upon the commander of a naval vessel." (Act of Aug. 
29, 1916, 39 Stat. 586.) 

23. Same— An enlisted man of the Marine Corps attached to a ship of the Atlantic Fleet 

was a member of a detachment temporarily camping ashore and committed an offense. 
The commander of this detachment, in bringing the man to trial by summary court- 
martial, signed the precept and specification as follows: "Commanding Officer, 
Fourth Division Atlantic Fleet Battalion, U. S. Marine Corps." The proceedings 
and sentence were approved without comment by the "Commander Fourth Division, 
U. S. Atlantic Fleet," as senior officer present. As the officer convening this summary 
court-martial was not such an officer as is empowered under the provisions of A. 
G. N. 26 to convene summary courts-martial, the department disapproved the pro- 
ceedings and sentence. File 26287-2857, Sec. Navy, Mar. 15, 1915; C. M. 0. 12, 1915, 6. 

24. Criticism— Of senior member by name in court-martial order. See Criticism of 

Courts-Martial, 62. 

25. Same — Members censured and entry made on reports of fitness as to manner of per- 

forming duty. See Criticism of Courts-Martial, 36. 

26. Deck courts — When an enlisted man is brought before the deck court for trial, he 

shall signify his willingness to be so tried by affixing his signature to a statement 
to that effect in the record. If he does so object to such trial, he shall be tried for the 
offense by a summary court-martial. (R-506.) 

In case a man refuses trial by deck court and is brought to trial before a summary 
court-martial, no mention concerning such refusal should be made in the record of 
the summary court-martial. C. M. O. 24, 1909, 3. See also Deck Courts, 50. 

27. Designation— The proper designation of a summary court-martial is "summarv court 

martial" not "summary court." See C. M. O. 9, 1908, 3; 24, 1909, 3; 14, 1911, 8-9 
33, 1914, 5, where improper designation was erroneously used. 

28. Disapproval of proceedings— And approval of sentence by senior officer present. 

See Reviewing Authority, 20. 

29. Execution of sentences. See Summary Courts-martial, 91. 

30. Excessive sentences. See Excessive Sentences 5. 

31. Final disposition of records. See Record of Proceedings, 59. 

32. Findings— The word "finding" is not used in actions on summary courts-martial. 

C. M. O. 36, 1914, 5. But see C. M. O. 15, 1910, 11, where the word "finding" was 
used. At the present time the word "finding" is used. (Naval Courts and 
Boards, 1916, p. — .) 
Findings when there are two or more specifications. See Findings, 86. 

33. Fraudulent enlistment— Should not be tried by summary courts-martial. See 

Fraudulent Enlistment, 91. 

34. General court-martial— General courts-martial are empowered by statute to inflict 

anv of the punishments authorized for summary courts-martial. (R. 819). See 
C.M. O. 153, 1902; 162, 1902; 233, 1902. 

35. Same— Charges and specifications withdrawn and accused tried by summary court- 

martial. See Nolle Prosequi, 15. 

36. Guilty in a less degree than charged— From the record of proceedings in the case 

of quartermaster third class, United States Navy, who was tried by summary court- 
martial, it was noted that 'the accused pleaded " Guilty" to that part of the specifica- 
tion alleging absence from his ship, station, and duty without leave from proper 
authority, but "Not guilty" to that part of the specification alleging his return to 
the ship in an intoxicated condition. The court found "the specification proved by 



SUMMARY COURTS-MARTIAL. 615 

plea except the words 'under the influence of some intoxicating liquor' thirteenth 
and fourteenth lines; which words were proved." Such a finding is improper. If 
the court found the entire specification proved, the proper recording of such finding 
would be "the specification proved," notwithstanding the fact that part of the 
specification was proved "by plea" and the remainder proved by evidence adduced. 

In this connection, however, attention is invited to the last clause of the paragraph 
headed " Rejection of plea," on page 23 of Forms of Procedure, 1910, which states that 
"save in exceptional cases, a court-martial should try the accused for the offense as 
charged." 

Furthermore, when an accused pleads guilty, except to certain words of a specifica- 
tion, it devolves upon the court to either accept or reject this plea as a whole. If 
accepted, the findings of the court should accord therewith; and if rejected, the prose- 
cution is put to the proof of every allegation contained in the specification, and not 
simply to those portions which may have been excepted in the plea of the accused. 
CM. 0.15, 1910, 11. 

37. Hospitals. See Hospitals, 2; Summary Courts-Martial, 22. 

38. "Immediate superior in command "—Whenever a convening authority places his 

indorsement upon the record of a summary court-martial, the title of his rank and 
office appearing therein should clearly show that he is legally empowered to take 
the action designated in his indorsement. The convening authority should sign thus : 

B- 



Colonel, XT. S. Marine Corps, 

Commanding Regiment, XT. S. Marine Corps. 

C D— -, 

Commander, XT. S. Navy, 

Commanding XT. S. S. . 



In accordance with the terms of the act of August 29, 1916 (39 Stat v 586), the sentence 
does not go into effect until approved by the "immediate superior in command," 
except in case the officer ordermg the court is the senior officer present, in which 
event the approval of the officer ordering the court is alone necessary to give effect to 
the sentence; but in such case he should always sign his indorsement as "Senior 
Officer Present" in addition to signing as convening authority, thus: 

A B , 



Colonel, XT. S. Marine Corps, 

Commanding Regiment, XT. S. Marine Corps, and Senior Officer Present. 

C D— , 

Commander, XT. S. Navy, 

Commanding XT. S. S. , and Senior Officer Present. 

The term "Immediate superior in command," as used in the above act, is construed 
as meaning that officer present who, in the chain of command of the forces imme- 
diately present, is next above the officer ordering the summary court-martial. Thus 
the officer present commanding a division is next above each of the commanding 
officers of the ships of that division present; the officer present commanding a brigade 
is next above each of the commanding officers of the regiments of that brigade present; 
and when ships are present which are not attached to a unit under the command of 
an officer present junior to the senior officer present, the commanding officers of such 
ships are next below the senior officer present, which latter officer is the immediate 
superior in command of such commanding officers. If the officer who orders th« 
summary court-martial is in the presence of an "Immediate superior in command," 
he should sign and forward the record to such superior in command for the latter's 
final action, and the latter should sign thus: 

E F , 

Rear Admiral, U.S. Navy, 

Commander Battleship Division , XT. S.Atlantic Fieri, 

Immediate Superior in Command. 

G H , 

Captain, XT. S. Navy, Commanding XT. S. S. , 

Immediate Superior in Command. 

From the above it will be seen that in acting upon summary court-martial records 
in the future the term "Senior Officer Present" is to be used* 011I7 when the officer 



616 SUMMARY COURTS-MARTIAL. 

convening the court is in fact the senior officer present. A revising authority, whose 
action is essential to validate thesentenceof a summary court-martial, will in every 
case indicate the fact by using the term "Immediate superior in command," even 
though such revising authority he in fact the senior officer present. CM. O. 30, 
1916, 7-8. See also Stjmmaby Courts-Martial, 22. 

39. Irregularities. See Record of Proceedings. 

40. Joinder, trial in. C. M. O. 13, 1916, 5. See also Joinder, Trial in, 9. 

41. Jurisdiction — Summary courts-martial have jurisdiction only of enlisted men and 

shall try only such offenses as are not sufficient to require their trial by general court- 
martial. C. M. O. 7, 1914, 12. See also A. G. N. 26. 

42. Las Animas Naval Hospital — Department's policy with reference to summary 

courts-martial at said hospital. File 26287 15:44, Sec. Navy, July 3, 1913, quoted in 
File 26836 16, J. A. G., Dec. 9, 1913. But see Summary Courts-Martial, 22, for 
the law and present policy. See also Summary Courts-Martial, 51. 

43. Limitations of punishments. See Summary Courts-Martial, 86. 

44. Limited jurisdiction. See Summary Courts-Martial, 40. 

45. Lost records— Sentence may be carried into effect if approved before being lost. See 

Record of Proceedings, 70. 

46. Marine Barracks. See Summary Courts-Martial, 22. 

47. Members— Failing to sign record. See Members of Courts-Martial, 12. 

48. Same — Obtaining where not attached to vessel of convening authority — When a trial 

by summary court-martial is decided upon, and a sufficient number of officers of the 
proper rank to compose the court are not under the command of the convening au- 
thority, the latter shall request the senior officer present to detail the additional 
officers necessary. (R 603 (1).) 

The senior officer present shall, if practicable, comply with such request, in which 
case he shall orally or in writing notify the officers detailed. (R-603 (2).) C. M. 
O. 6, 1915, 6. 

49. Multiplicity of specifications for same offense. See Charges and Specifications, 

62. 

50. Multiplicity of trials — The accused was tried by summary court-martial three separate 

and distinct times on the same date for offenses which might have been disposed of 
at one trial. Upon a careful review of these records, no irregularity was found which 
would invalidate the proceedings. One trial should have been held, the accused 
having three specifications preferred against him as is provided for in Forms of Pro- 
cedure, 1910, page 156, thereby saving the time of the accused and the members of 
the court and avoiding the clerical work involved in preparing a multiplicity of records. 
File 26287 3303, J. A. G., Feb. 12, 1916; C. M. O. 5, 1916, 6. 

51. Naval hospital, Las Animas, Colo.— "In accordance with the authority vested in 

me by the act approved August 29, 1916 (39 Stat., 5S6) I hereby authorize the com- 
manding officer of the United States naval hospital, Las Animas, Colo., to order 
summary courts-martial." File 26287 1981:4, Sec. Navy, Sept., 1916. 

The above commanding officer, if he is the senior officer present, would properly 
sign his approval on court-martial records as such and the sentences could then be 
carried into execution without further approval. It would not be necessary for the 
Secretary of the Navy to specifically authorize the sentence to be carried into execu- 
tion upon such approval. File 26287-1981:4, J. A. G., Sept. 15, 1916. See also Hospi- 
tals, 2; Summary Courts-Martial, 22, 42. 

52. New court— See Confinement, 5; Summary Courts-Martlal, 80, 82; File 32557-58- 

S. C. M., J. A. G., Nov. 7, 1902; 21 J. A. G., 331. 

53. Nolle prosequi— General court-martial charges and specifications withdrawn and the 

accused tried by summary court-martial. See Nolle Prosequi, 15. 

54. Oaths. See Oaths, 47, 54. 

55. Pay— The record of proceedings of a summary court-martial was returned with the 

following remarks: "This record fails to show that checkage of pay has been made " 
as required by Navy Regulations, 1913, R 626, and Forms of Procedure, 1910, page 
166. C. M. O. 34, 1913, 3. 

In both summary courts-martial and deck courts records, the pay officer should 
show over his signature the amount of checkage made in each case. C. M. O. 24, 
1909, 3. 

Summary courts-martial and deck courts are authorized by the act of February 16, 
1909, section 8 (35 Stat., 621), to award a loss of pay by itself, without confinement. 
C. M. O. 24, 1909, 3. See in this connection G. O. 129, June 14, 1869. 



SUMMARY COURTS-MARTIAL. 617 

56. Same — Loss of pay in summary courts-martial and deck courts should be checked upon 

approval by the senior officer present or convening authority, respectively, and no 
notation should be made as to the loss of pay being "Subject to the approval of the 
Secretary of the Navy." Such reference is no longer necessary, as is evident from 
section 17 of the act of February 16, 1909 (35 Stat., 622), embodied in General Order 
No. 12, of 1909. C. M. O. 24, 1909, 3. See also Deck Courts, 36. 

57. Same— Loss of pay for both summary and deck courts should be expressed in dollars 

and cents— not days' pay— and should be based upon the actual pay, not including 
extras for mess cook, gun pointer, acting coxswain, etc. See Deck Courts, 35. 

58. Same — The reason for stating the pay account status of the accused in a summary 

court-martial record is to prevent an excessive sentence. See Accused, 54. 

59. Same — Loss of pay checked upon approval of the "immediate superior in command." 

See Summary Courts-Martial, 22, 38. 

60. Pay officers — Notations on records. C. M. 0. 36, 1914, 5. See also 164 S. and A. Memo 

3405. 

61. Precept— The original order convening the court, and all orders altering the same, 

together with the original specification approved and signed by the officer ordering 
the court, must be prefixed to the record. (R 610 (1).) 

If, however, more than one case is to be tried by the same court, the order shall be 
referred to in each case subsequent to the first to show that the proceedings are con- 
tinuous, and the record of each case must be made up separately. (R 610 (2).) 

The precept for a summary court-martial shall specify the personnel of the court 
and the time and place of meeting. (R 604 (1).) 

The convening authority shall deliver the precept to the senior member and, orally 
or in writing, notify the other members and recorder of their appointment. (R-604 
(2)0 

62. Reconvening by senior officer present. See Reconvening, 16. 

63. Reconvening of itself. See Court, 149. 

64. Record of proceedings— "After the proceedings and trial have been completed and 

recorded, they shall be signed by the senior member and the recorder, and the senior 
member shall transmit the record to the convening authority. (R-620 (2).) C. M. 
O. 15, 1910, 12. 

65. Same— If the convening authority approves the whole or any part of the sentence 

adjudged, he shall transmit the record to the commander in chief, or in his absence 
to the senior officer present. Should no officer senior to himself be present, he shall, 
in subscribing his action upon the record, add to his title the words "Senior Officer 
Present." (R-620 (4).) See also Summary Courts-Martial, 38. 

66. Same — In cases where the accused has been acquitted by the court, or where the sen- 

tence has been disapproved by the convening authority, the record of proceedings 
shall be submitted to the senior officer present in the same manner as though a sen- 
tence requiring action still remained. (R-622 (8).) 

67. Same — Records of proceedings of summary courts-martial shall be kept and made up 

in the manner hereinafter prescribed for records of general courts-martial and in 
accordance with the instructions contained in the authorized forms of procedure. 
They shall be transmitted direct to the Judge Advocate General. (R-624 (1).) C 
M. O. 1, 1913, 7. 

Record of proceedings in revision should be prefixed, not appended. See Re- 
vision, 37; Summary Courts-Martial, 81. 

68. Same— Proceedings and sentence approved by the convening authority, but senior 

officer present disapproved proceedings arid approved sentence. See Summary 
Courts-martial, 28; Reviewing Authority, 20. 

69. Same— Where record is lost after approval sentence may be carried into effect. See 

Record op Proceeding, 70. 

70. Recorder — Such procedure was irregular and indicated a lack of preparation of the 

case by the recorder and carelessness on the part of the court in not noticing the error 
referred to at the proper time and before reaching its finding and rendering judgment. 
Navy Regulations, 1909, R-1094 (2) [Navy Regulations, 1913, R-620 (2)] provides 
that after tho proceedings and trial have been completed and recorded, they shall be 
signed by the senior member and the recorder, and transmitted to the convening 
authority. Paragraph 1 of the above article states that the sentence of the court 
shall be signed by all the members and the recorder. (See also art. 1776, U. S. Navy 
Regulations, 1909.) 



618 SUMMARY COURTS-MARTIAL. 

On page 2 of the record it is shown that the only witness called was duly warned 
and withdrew after having verified his testimony. On page 4 it appears that, "although 
the court had "reconvened,"' this witness was recalled, permitted to recorrect his 
testimony, which he had previously pronounced to be correct , and to give additional 
testimony. Furthermore, it is observed that, after this irregular procedure, the 
court allowed the accused to question this witness, but the question having been 
propounded and the answer thereto given, the court decided that "the question by 
the accused and the answer were irregular and should not have been allowed, and 
also decided not to consider such question and answer in its finding and sentence. *' 

Article 16S5 (10). United States Navy Regulations, 1909, provides that no evidence 
except evidence of previous conviction, shall be admitted after the court arrives at 
its finding. As the court has reached its finding (as shown on p. 2), this procedure 
was not only irregular, but violated the aforementioned article. 

Althoughthe court had previously reached its finding (p. 2), it is observed (p. 4) 
that the court, without revoking its former finding, directed the recorder to record an 
additional finding. C. M. 0. 15, 1910, 12. 

71. Sam* — The recorder is a constituent part of the summary court-martial. C. M. O. 14, 

1911, 8. 

72. Same— Difference between recorders of deck courts and summary courts-martial 

described. See Deck Courts, 58. 

73. Same — An accused either has counsel, or waives such assistance, but even then, the 

recorder is required to safeguard the interests of the accused. C. M. O. 31. 1911, 6. 

74. Same— Criticised by thr department for neglecting his duty. C. M. O. 42, 1909, 15-16. 

Criticised for trying case out of court. See Acquittal, 30. 

Record returned for signature of recorder. File 31395-S. C. M., J. A. G., June 27, 
1902; 20 J. A. G.,396. 

75. Reduction in rating— In response to an inquiry as to the maximum forfeiture of pay 

a summary court-martial could adjudge in the case of a man reduced by sentence of 
the court to the next inferior rating, the department held (File 26237 1372:1): 

" The department considers that the intent of article 30, Articles for the Government 
of the Navy, which limits the loss of pay that a summary court-martial may adjudge, 
to the loss of three months' pay, is to limit the loss to three months' pay based on the 
pay of the accused in the rating to which he has been reduced." C. M. O. 1, 1913, 7. 
See also Reduction fn Rating, 30. 

76. Rejection ol accused's plea— Of guilty in a less degree than charged. Sec Guilty 

in a Less Degree Than Charged, 9-11. 

77. Reports on fitness — Members censured and manner of performing duty entered on 

reports of fitness. See Criticism of Courts-martial, 36. 

78. Restriction— Convening or reviewing authority may mitigate "confinement" to "re- 

striction." See Confinement, S; Restriction, 1, 4; Summary Courts-martlal, 92. 

79. Same — "To be restricted to the limits" of the ship, etc., may not be adjudged by a 

summary court-martial. See Restriction, 5, 6. See also Summary Couets-mar- 

TLAL, 92. 

80. Revision— The convening authority may submit the case to the same or to another 

summary court-martial. (R-621 (2).) 

If a new court be ordered, it is restricted in its action to a reviewal of the record of 
the former trial and a redetermination of the sentence. No further testimony is to 
be admitted. (R-621 (3).) [Sec Revision. 14.] 

Revision by a new court can be ordered only in a case where the sentence of the 
original court would be detrimental to the health of the accused. File 26287-1507; 
26287-1508. 

81. Same — Record in revision should be prefixed to record of which it is a part, not ap- 

pended. C. M. O. 29, 1914, 3. See also Revision. 32. 

82. Same — A summary court-martial case was returned to court by the senior officer 

present to the convening authority for correction regarding the introduction of a 
previous conviction not admissible. 

A new and different court was ordered by the convening authority which court 
eliminated from consideration that part of 'the enlistment record questioned, and 
adhered to former sentence. 

Department disapproved entire proceedings and sentence because of above irregu- 
larity and also the fact that a new court for revision can be ordered only in a case where 
the sentence of the original court would be detrimental to health of accused. File 
26287-1507, Sec. Navy, Feb. 20, 1913. 



SUMMARY COURTS-MARTIAL. 619 

83. Secretary of Navy— No express action is taken by the Secretary of the Navy, after a 

summary court-martial record has been approved by the convening authority, and 
the senior officer present, unless it is decided to "set aside the proceedings, or remit 
or mitigate, in whole or in part, the sentence imposed" by any summary court- 
martial; and in such case the record is acted upon by the Secretary of the Navy, or 
acting Secretary of the Navy in person in accordance with the provisions of section 
9 of the act of February 16, 1999 (35 Stat., 621). 

Where no express action is taken by the Secretary of the Navy, or acting Secretary 
of the Navy, the sentence of the court-martial is permitted to be carried into effect 
in accordance with section 17 of said act of February 16, 1909 (35 Stat., 622), which pro- 
vides "that all sentences of summary courts-martial may be earned into effect upon 
the approval of the senior officer present." File 27210-183, Apr. 22, 1913. 

Special action by Secretary of Navy. C. M. O. 5, 1914, 4; 33, 1914, 6-8. 

84. Senior member— Criticized and name published in Court-martial Order. See Criti- 

cism of Courts-martial, 62. 

85. Senior officer present. See Senior Officer Present; Summary Courts-martial, 

38,92. 

86. Sentences — Summary courts-martial may sentence petty officers and persons of 

inferior ratings to any one of the following punishments, namely: 

(1) Discharge from the service with bad-conduct discharge; but the sentence shall 
not be carried into effect in a foreign country. 

(2) Solitary confinement, not exceeding 30 days, on bread and water, or on dimin- 
ished rations. 

(3) Solitary confinement not exceeding 30 days. 

(4) Confinement not exceeding two months. 

(5) Reduction to next inferior rating. 

(6) Deprivation of liberty on shore on foreign station. 

(7) Extra police duties, and loss of pay, not to exceed three months, may be added to 
any of the above-mentioned punishments. 

"The courts authorized to impose the punishments prescribed by article 30 of the 
'Articles for the Government of the Navy' may adjudge either a part or the whole, 
as may be appropriate, of any one of the punishments therein enumerated : Provided, 
That the use of irons, single or double, is hereby abolished except for the purpose 
of safe custody, or when part of a sentence imposed by a general court-martial." 
(Act Feb. 16, 1909, 35 Stat., 621.) A. G. N. 30. C. M. O. 2, 1912, 5. See also Con- 
finement, 12, 40, 41. 
17. Same — Summary courts-martial are restricted in their sentences to the punishments 
specifically authorized in article 30 of the Articles for the Government of the Navy, 
R-30, but all courts empowered to impose the punishments prescribed by the above- 
mentioned article may adjudge either a part or the whole, as may be appropriate, 
of any one of the punishments therein enumerated. Care must be taken, therefore, 
not to include parts of two or more punishments in a sentence. Hence, sentences to 
"extra duties" instead of "extra police duties," and to "dishonorable" instead of 
"bad-conduct" discharge are illegal, as imposing a punishment differing in nature 
from those authorized. Also, sentences involving confinement on bread and water 
or on diminished rations are illegal unless it is expressly provided that such confine- 
ment is to be "solitary," although solitary confinement may be adjudged bv itself. 
(R-619 (1).) C. M. O. 2, 1912, 5. 

88. Same — Should conform to an established schedule in order to secure uniformity. See 

Sentences, 111, 112. 

89. Same— Must adhere to statutory form of sentences. See Confinement, 41 ; Statutory 

Sentences, 1, 3-5. 

90. Same— Where the legal term of confinement is limited to "30 days," the exact phrase- 

ology should be employed in adjudging a sentence involving confinement for such 
maximum period. A sentence of "solitary confinement not exceeding one month,"' 
for example, would be irregular and improper, as A. G. N. 30, prescribes "30 days" 
as the maximum, while 1 month might be in excess of the limit so fixed. G. M. O. 
2, 1912, 5. 

91. Same— All sentences of summary courts-martial may be carried into effect upon the 

approval of the senior officer present . (Act Feb. 16, 1909. 35 Stat . , 623 : A . Q . N . 32) . 
C.M. 0.31, 1911, 3-4; File 39S0-1075, J. A. G., Apr. 6, 1915. See in this connection 
Summary Courts-Martial, 38. 

"No sentence of a summary court-martial shall be carried into execution until t he 
proceedings and sentence have been approved by the officer ordering the court, or his 



620 SUMMAKY COURTS-MARTIAL. 

successor in office, and by his immediate superior in command: Provided, That if the 
officer ordering the court, or his successor in office, be the senior officer present, such 
sentence may be carried into execution upon his approval thereof." (Act, Aug. 29, 
1916, 39 Stat., 586.) C. M. O. 30, 1916, 6. See also Summary Courts-martial, 38. 
92. Same — "To the limits of the garrison"— A record of a recent summary court-martial 
shows that the court adjudged the following sentence: "To be confined to the limits 
of the garrison for two (2) months and lose pay amounting to thirty (30) dollars." 

The question thus appears to be whether the court properly phrased its sentence 
in requiring that the confinement for two months should be restricted "to the limits 
of the garrison," or whether it should have simply made the sentence read as phrased 
in the law, i. e., "confinement for two (2) months and to lose pay amounting to thirty 
(30) dollars." Held, That the court inserted in its sentence a provision for which the 
law contains no authority, and made the sentence one which merely deprived the 
offender of liberty for two months. It was not intended that the statute should 
cover punishments which the commanding officer himself was authorized to inflict, 
one of which is deprivation of liberty. Article 26 of the Articles for the Government 
of the Navy specifically provides that summary courts-martial 'are intended "for 
the trial of offenders which such officer may deem deserving of greater punishment 
than such commander or commandant is authorized to inflict." 

One of the punishments which a summary court-martial is authorized to inflict is 
"deprivation of liberty on shore on foreign station," and the fact that article 30, 
Articles for the Government of the Navy, so provides, also tends to exclude the theory 
that a summary court-martial can adjudge a sentence which amounts only to a 
deprivation of liberty on shore in this country. 

It appears to be evident, therefore, that the punishment of "confinement not 
exceeding two months" authorized by article 30, Articles for the Government of the 
Navy, was intended to be a different punishment from mere deprivation of liberty, 
which the commanding officer himself could adjudge. Indeed, if the convening 
authority, after reviewing the proceedings of a summary court-martial, deems that 
the ends of justice will be subserved by so doing, he is authorized to mitigate a sen- 
tence of "confinement not exceeding two months" to "confinement to the limits of 
the garrison," but no such power is given to the court itself, which must strictly 
adhere to the statutory form of sentence. Therefore, not only upon the authority 
of the cases hereinbefore cited, but also upon principle, the court had no authority 
to make ' ' any departure in the sentence from the express terms of the statute, whether 
as to the form or the extent of the punishment." 

The sentence is therefore void and of no effect. C. M. O. 2, 1912, 4-11. 

93. Sendee records— Transcripts for. See Service Records, 19. 

94. Setting aside. See Setting Aside. 

95. Solitary confinement. See Bread and Water, 4; Confinement, 5. 12; Solitary 

Confinement; Summary Courts-martial, 86. 

96. Specifications— A single specification should set forth only one offense— Accused was 

tried under one specification which alleged " his return to said ship from special libertv, 
drunk and disorderly;" and that he did "while being placed in confinement * * * 
forcibly resist arrest." Thus two distinct offenses were set forth in a single specifica- 
tion, whereas "each offense of a different kind shall be the subject of a distinct charge 
and specification." (Forms of Procedure, 1910, p. 83.) 

It has been noted during the past month in the review of summary court-martial 
cases that in a number of cases several offenses have been set forth in the same specifi- 
cation. This error is most commonly committed in joining "absence over leave" 
with such offenses as "drunk and disorderly," "returning on board drimk and unfit 
for duty," and "breaking arrest." Each of the latter offenses is distinct in itself, 
notwithstanding its causal connection with the offense of "absence over leave," and 
should be set forth in a separate specification. (Navy Regulations, 1913, R-608. 
See also R-712 (2)). C. M. 0. 16, 1916, 6-7. See also Charges and Specifications, 
45, 62. 

97. Speedy trials. See Speedy Trials, 3. 

98. Statutory sentences. See Statutory Sentences. 

99. Testimony. See Evidence, 88. 

100. Titles— It was recommended that certain commanding officers be authorized to use 
the title of "commandant" when convening summary courts-martial and deck 
courts. File 26287-1183, J. A. G., May 4, 1912. 



SUMMARY COURTS-MARTIAL. 621 

101. Trying case out of court— The recorder should not usurp the functions of the court. 

by "trying the case out of court." CM. O. 42, 1909, 15. See also Judge Advocate, 
123. 124. 

102. Uniformity of sentences. See Sentences, 111, 112. 

103. Usurpation— Of courts functions by recorder. See Courts, 186; C. M. O. 42, 1909, 15. 

104. Warrant officers— May not, if not commissioned, sit as a member; but otherwise if a 

commissioned warrant officer. See Chief Boatswains, 2; Summary Courts-mar- 
tial, 105. 

105. Same— The fact that a boatswain who is a commanding officer may be junior to all 

of the members of a summary court-martial convened by him is immaterial. A 
case of this nature occurred at the Philadelphia Navy Yard in reference to the acting 
commandant convening a summary court-martial for the trial of men attached to 
the receiving ship at that yard, because the commanding officer of the receiving ship 
was junior to the senior member of the proposed summary court-martial. The 
department in this case stated: 

" Since, however, the inflicting of minor punishments, on board ships in commission, 
including the ordering of the trial by summary court-martial of men attached thereto, 
concerns internal discipline, and since the uniform practice on board receiving ships 
at other yards is and has been for the commanding officer of such receiving ships to 
exercise the prerogatives of convening authority, the commandant acting as senior 
officer present, as prescribed by the relations, it is considered advisable in future 
that the same practice be followed at the navy yard under your command, and it is 
directed that it be done." File 26287—1873. 

106. Witnesses— Summons for. See Witnesses, 59, 107. 

SUMMONS. See also Subpoenas. 
1. Enlisted men and others— As witnesses before naval courts-martial. See Witnesses, 
59, 107. 

SUNDAY. See also Sabbath Day. 

1. General courts-martial— Adjourning over Sundays. See Adjournment of Courts- 

martial. 

2. Laws. See Sunday Laws. 

SUNDAY LAWS. 

1. Base ball on Sundays— "It is not illegal per se to play ball on Sunday. However, 
where it is played in such a manner as to interrupt the repose and religious liberty 
of the community, or when the game is public and an admission is charged directly 
or indirectly, it becomes unlawful under statutes prohibiting sporting or public 
sport, but does not under statutes prohibiting games." (37 Cyc, 551.) It has also 
been judicially stated that physical exercises and games are not forbidden on the 
Sabbath in the Ten Commandments; and that in the Christian Church there have 
never been any rules prohibiting phvsical games and exercises on Sunday. (37 Cyc, 
550, citing People v. Poole, 89 N. Y. S., 773.) File 5103-164:4, Sec. Navy, Sept. 9, 
1915. See also File 3355-145, July 2, 1907. 

SUPERIOR OFFICERS. 

1. Definition— "Officer" as defined in R-64. See Officers, 33. 

"An officer whose rank is higher in comparison with another. A senior officer." 
(Hamersly's Naval Encyc.) File 26251-12159, p. 13. 

" Of more excellent rank or dignity; belonging to a higher grade; as a superior court; 
superior studies * * *. Locally higher; more elevated; upper * * *. A per- 
son of more exalted rank or dignity than another or others * * *." (Stand. Diet.) 
File 26251-12159, p. 13. 

"By the term 'superior/ as used in this part of the Article [Art. of War 21], is clearly 
meant an officer of rank superior to that of the offender — or, where an enlisted man 
is the offender, any commissioned officer whatever— whether or not such officer be, 
properly speaking, a commanding officer." (Winthrop, 880.) File 26251-12159, p. 14. 

In 1909 the question was presented whether the senior Civil Engineer was t ho official 
superior of other officers in the Corps of Civil Engineers with whom he was not asso- 
ciated on duty, and who desired to present him with a testimonial. It was con- 
tended that "the meaning of superior is one whose position places him over and in 
charge or control, of those contributing to or presenting him with a gift, and that a 
senior naval officer is not necessarily a superior under this clause. Thus an officer in 
command of a ship would be a superior of the j unior officers serving on that ship, under 



622 SUPERIOR OFFICERS. 

him, but would be a senior and not a superior to officers on other ships not under 
his command. Similarly, a Chief of Bureau would be the superior of the officers 
serving under him under the Bureau, and would be a senior but not a superior to 
officers serving under other Bureaus or upon detached duty independent to that 
Bureau." The departments decision, November 9, 1909, was" as follows: 
. ' "The interpretation in question depends upon a definition of the words superior 
official in which the department can not concur, as it is considered that an officer 
superior in rank is a superior official within the intention of the Regulation [R-1520], 
which is section 1784 of the Revised Statutes with a paragraph added to prevent 
indirect presents to officers of the Navy * * *. The department, therefore dis- 
affirms the interpretation of Civil Engineers * * * and * * *." File 26806- 
33, Sec. Navy, Nov. 9, 1909, quoted with emphatic approval in file 26251-12159, Sec. 
Navy, Dec. 9, 1916, pp. 13-14. See also C. M. O. 5, 1917. 
2o Master-at-arms. See Master-at-arms, 1. 

3. Mates. See Mates, 8. 

4. Petty officers — The accused was charged with "Assaulting and striking his superior 

officer while in the execution of the duties of his office," the specification alleging that 
he did "assault and strike" a master-at-arms, etc. The court found the specification 
proved but not guilty of the charge as worded on the grounds that a "petty officer" 
is not a "superior officer" to a man not rated. The department did not sustain the 
contention of the court, and the finding was disapproved. CM. O. 31, 1908, 3. 

5. Public reprimand— Right of superior officers to reprimand subordinates. See Public 

Reprimand, 17. 

SUPERVISORY NAVAL EXAMINING BOARDS. See Promotion, 190-192. 

SUPREME COURT. 

1 . Officer— Commissioned officer of Marine Corps acted as counsel before. See Counsel, 52. 

2. Rules of evidence. See Evidence, 107. 

3. Solicitor — Acted as counsel before. See Counsel, 49, 52. 

SURGEONS. See also Medical Officers of the Navy. 

1. Acting assistant surgeons. See Acting Assistant Surgeons. 

2. Dental surgeons. See Dental Surgeons. 

3. Unprofessional conduct. C. M. O. 59, 1S82. See also C. M. O. 1, 1882, 3. 

SURGEON GENERAL. 

1. Promotion of. See Naval Examining Boards, 24. 

SURGICAL OPERATIONS. 

1. Amputation of arm. See Amputation, 1. 

2. Capital operation. See Surgical Operations, 6; Words and Phrases. 

3. Hernia— Not compellable— An officer of the Marine Corps will not be required to submit 

to a capital operation for the removal of a physical disability which involves risk of 
life. The department so held in the case of an officer whose disability consisted of 
"probable intestinal obstruction which originated in the line of duty, following an 
operation for irreducible right inguinal hernia." File 26253-9S, J. A. G., May 17, 1910. 

4. Major operation. See Surgical Operations, 6; Words and Phrases. 

5. Minor operation. See Surgical Operations, 6; Words and Phrases. 

6. Refusal to take— It was held that the findings of a retiring board in the case of an 

officer that "the present incapacity of * * * is due to the fact that he will not 
submit to an operation recommended by responsible medical officers of the Navy, 
and is therefore not the result of an incident of the service" should be disapproved. 

There is nothing by which one in the naval service can be compelled against his 
will to undergo a major or capital operation. But it is otherwise if the operation be a 
minor one, or if treatment is proposed. 

An Army officer was given the choice of resigning or submitting to a radical oper- 
ation for hernia. The Navy Department has held otherwise in the case of hernia. 
File 26253-98, J. A. G., May 17, 1910. 

SURRENDER OF DESERTERS. See Desertion, 102, 128-130. 

SUSPENSION FROM DUTY. 

1. Bar to trial — Suspension from duty, not imposed as a court-martial sentence, does not 

bar further disciplinary proceedings. See Jeopardy, Former, 41, 42. 

2. Breach of arrest. See Suspension from Duty, 6. 

3. Full pay. See Suspension from Duty, 11. 



SUSPENSION FKOM DUTY, 623 

4. Leave of absence— The department does not consider favorably a part of a sentence 

consisting of "three months' leave of absence" with the full pay corresponding to that 
status, particularly as such action would necessitate the detail of another officer to 
perform his duty while he was permitted to remain idle. The granting of such leave 
is a privilege which would not, except under extraordinary circumstances, be accorded 
by the department to any officer during a tour of sea service. C. M. 0. 103, 1896, 1-2. 
See also Adequate Sentences, 15. 

5. Leave pay— As extended periods of severance from active duty are calculated to im- 

pair the efficiency of an officer, and are detrimental to the interests of the naval service, 
the department remitted that part of a general court-martial sentence of an officer 
involving suspension from duty on leave pay. C. M. O. 73, 1896, 2. 

6. Limits assigned — "An officer suspended from duty shall confine himself to the limits 

assigned him at the time of his suspension or afterwards, and his failure to do so shall 
be regarded as a breach of arrest." (Navy Regulations, 1913, R-1418.) J. A. G., 
June 7, 1915. 

7. Midshipmen— Suspension without pay. See Midshipmen, 62. 

8. Reduced pay. See Suspension from Duty, 12. 

9. Sentences— The accused was sentenced "to be suspended from rank and duty." "In 

view of the fact that suspension from rank and duty for three months as provided in 
the sentence would operate to give * * * full pay during that time" it was 
remitted. C. M. 0. 34, 1907, 3, 4. Seealso C. M. 0. 8, 1909; Adequate Sentences, 15. 

10. Same— On the general subject of suspension from duty the department has held that 

it is not a substantial punishment and contrary to the policy of the department. 
(C. M. O. 73, 1905; 75, 1905; 31, 1912; 32, 1912; 25, 1913; 7, 1914, p. 13.) C. M. O. 
13, 1915, 1. See also An. Rep. J. A. G., 1893, p. 8. 

11. Same — As to suspension from duty without reduction in pay, the department has 

stated that this is not a substantial punishment; and that it "has repeatedly held 
that its effect is merely to relieve the officer from duty without consequent reduction 
in pay, thereby causing a positive loss to the Government. (See C. M. Order No. 25, 
1913, and precedents cited therein.) Under the Navy Regulations an officer sus- 
pended from duty on board ship is not placed in confinement, but has the freedom of 
practically the entire vessel, unless greater restraint should be necessary for the 
safety of the ship or otherwise. (R-1419.) In the present case, therefore, the sus- 
pension of * * * from duty was rather a punishment to the other officers of the 
vessel, who had to perform his duty in addition to their own, while, on the other 
hand, he received full pay from the Government although rendering no services 
whatever in return therefor." (C. M. O. 7, 1914, p. 13.) C. M. 0. 13, 1915, 2. 

12. Same — As to suspension from duty with reduction in pay, the department has also 

held that it "is an undesirable form of punishment, prejudicial to the best interests 
of the service, and contrary to the policy of the department" (C. M. O. 73, 1905; 25, 
1913); and again, "Neither does the department deem it desirable to impose upon 
an officer a sentence providing for suspension from duty, as such a sentence is detri- 
mental to the interests of both the officer and the Government, since the officer is 
probably left without employment and the Government loses his services" (C. M. O. 
31, 1912; 32, 1912; 25, 1913). "The sentence as adjudged would cause a positive loss 
to the Government, inasmuch as the Government would receive no services from 
the accused in return for the money paid him during the operation of the sentence." 
(C. M. O. 25, 1913, p. 2.) C. M. O. 13, 1915, 2. 

13. Same— The sentence of "to be suspended from rank and duty * * * to receive 

during said period one-half of shore pay" is "inappropriate, since it relegates to 
idleness for two years an officer whose services are needed, and throws his work on 
others." C. M. O. 67, 1902. See also C. M. O. 21, 1910, 17; 1, 1911, 3. 

14. Same— "To be suspended from rank and duty for a period of six months, on one-half 

of the pay he would receive if performing duty at sea, to retain his present number 
in his grade while so suspended; and to be publicly reprimanded by the Secretary 
of the Navy." C. M. 0. 101, 1906. See also C. M. O. 90. 1903. 

15. Same — " To be suspended from duty for a period of * * * (*) months on one-half 

(J) shore-duty pav." C. M. O. 31, 1912; 32, 1912. 

16. Same— "Suspended from duty on three-quarters shore-duty pay." 0. M. O. 25, 1913. 

17. Same— Sentences of officers including suspension must state distinctly whether from 

rank or from duty only. (R-816(1); Forms of Procedure, 1910. p. '43.) 

18. Sword — When an officer is placed under suspension it is not necessary or proper that 

he be required to deliver his sword to his commanding oificer. See' Arrest, 26, 39. 

50756°— 17 40 



624 TARGET PRACTICE. 

SUSPENSION FROM PROMOTION. See Administbation, 4; Commissions, 40: 
Promotion, 194-207. 

SUSPENSION FROM RANK AND DUTY. See Suspension from Duty, 9, 13, 14, 17 
SUSPENSION OF CIVIL, EMPLOYEES. 

1. Without pay. See File 26283-968, Sec. Navy, Dec. 16, 1915; 26283-961, Sec. Navy, 
Dec. 21, 1915. 

SWEARING FALSELY. C. M. O. 47, 1910, 5. See also False Swearing; Perjury. 
SWEAT BOXES. 

1. Confinement in— "No rooms hitherto called 'sweat boxes' will be allowed on board 
any vessel of the Navy, but each ship will have a proper place in which to secure 
persons sentenced to be confined according to law. 

"No room for this purpose will be smaller than a stateroom allowed a wardroom 
officer in a sloop-of-war." Circular, Sec. Navy, Mar. 3, 1870. 

Prisoners shall not be confined in any other spaces than those which have been 
designated by the Navy Department as prisons or spaces proper to be used as such. 
In case of necessity, extra spaces may be authorized by a commander in chief on a 
foreign station, by a senior officer present, or by the commanding officer of a ship 
acting singly, and the medical officer of the ship shall be called upon to report whether 
such spaces are fit for prison use. (R-l 431(1).) 

SWIMMING. See Line of Duty and Misconduct Construed, 18, 19, 21, 25, 28, 40, 
41, 60, 103. 

SWINDLING. See Debts, 16. 

SWORD. 

1. Arrest of an officer— Delivery of sword. See Arrest, 26, 39. 

2. Debts— Officer tried by general court-martial for leaving his sword in payment of debts. 

See Debts, 28. 

3. Suspension from duty — Not necessary that officer should deliver his sword to his 

commanding officer. See Arrest, 26; Suspension from Duty, 18. 

SYSTEM OF DISCIPLINE. 

1. Baron Steuben— Adopted by Congress, March 29, 1779. File 8124-55, J. A. G., Oct. 

17, 1916. See also Discipline, 21. 

2. Naval militia— The act of August 29, 1916 (39 Stat., 599), provides "That the Naval. 

Militia shall be subject to the system of discipline prescribed for the United States 
Navy and Marine Corps, * * *." In construction of the words "system of disci- 
pline" as used therein, the Judge Advocate General of the Navy rendered an opinion 
to the effect that these words extend to the Naval Militia of the States the provisions 
of the Regulations, Articles for the Government of the Navy, and other laws relating 
to the Navy, which provide for training and general rules of conduct, but do not ex- 
tend to the Naval Militia the provisions of Regulations, Articles for the Government 
of the Navy, and other laws which relate to the administering of punishment. In 
other words, the expression "system of discipline' 7 in this connection refers to matters 
of substantive law— that is,, "the positive law of duties and rights" — as distin- 
guished from adjective law, or "rules of procedure," intended for the enforcement of 
such duties and rights. Accordingly, the lavs and regulations of the Navy which 
prescribe the system of training, the duties and rights, and the general rules of con- 
duct of persons in the Navy, apply to the Naval Miiitia under the above clause of this 
statute; but not the laws and regulations of the Navy which provide for the enforce- 
ment of discipline by means of punishment. File 8124-55, J. A. G., Oct. 17, 1916; 
C. M. O. 37, 1910, 11. See also Discipline, 20. 

TACTICAL SIGNAL BOOKS. See Battle, 1; Books, 6; Confidential Publica- 
tions, 3. 

TARGET PRACTICE. 

1. Within marine league of the coast of Japan— The commanding officer of a naval 
vessel was tried by general court-martial under the charge of "Neglect of duty" for 
holding target practice within the marine league of Japan without securing permission 
from the Japanese Government. Fired at a target erected within 50 yards of shore 
without ascertaining whether such firing would endanger lives. He also departed 
without being certain that the shells had all exploded. Accused was acquitted, but 
department commented in strong language, disagreeing with the court. C. M. O. 
41, 1888. 



TARGET PRACTICE. 625 

2. Same— In the above case the department stated, in part: "The department can not 
assent to the view that a naval officer may, without blame, hold his target practice 
upon the soil of a friendly power without consulting such power, and, where he 
actually imperils life by the flight of the projectiles, without the previous examination 
which would have disclosed such peril, and that he may sail away, with his full duty 
discharged, leaving six unexploded projectiles to endanger innocent lives." C. M. O. 
41, 1888, 10. 

TARGET RAFTS. 

1. Adrift— An officer was trie<^ oy general court-martial for negligently permitting a target 
raft to get adrift and not making raft visible by means of signals or lights. CM. O. 
11, 1911, 1. 

TAXATION. 

1. "Office"— The "office" of an officer of the United States can not be taxed. File 9212-22, 

J. A. G., Feb. 21, 1912. 

2. Personal property— Of naval officers at Naval Proving Ground, Indianhead, Md. 

File 9212-72, J. A. G., Apr. 19, 1916. 

3. Poll taxes. See Poll Taxes. 

4. Property taxes. See File 26252-330:a and b. 

5. Service pensions. See Jurisdiction, 127. 

6. United States property— Taxation by States of automobiles owned by the Federal 

Government. See Automobile, 3. 

TECHNICAL " BREAKING ARREST." See Breaking Arrest, 11. 

TECHNICAL DEFENSE. 

1. Department— States that the defense of the accused was entirely technical. It carefully, 
and upon unsound pretexts, evaded an issue which the accused should have hastened 
to face, if he had been guiltless of offenses which so seriously affected his character as 
an officer and a gentleman. Although its sophistries would not for a moment have 
embarrassed the decision of an ordinary court of justice in the case, they seem to have 
prevailed before the court-martial; and its judgment is characterized bv extraordi- 
nary leniency. C. M. O. 20, 1881. See also C. M. O. 22, 1883; Officers, 88, 116; Tech- 
nical Pleas. 

TECHNICAL. EMBEZZLEMENT. See Embezzlement, 25, 30. 

TECHNICAL ERRORS. 

1. Charges and specifications. See Char es and Specifications, 33, 34; Demur- 
rer, 6. 

TECHNICAL PLEAS. 

l. Officer's defense— Officer criticized. See Officers, 88, 116; Technical Defense. 

TECHNICALITD3So See also Words and Phrases. 

1. Court of inquiry— Technical irregularities in. File 4865-19, Sec. Navy, Julv 8, 1907. 

2. Court-martial procedure— Technicalities should not be introduced into naval court- 

martial procedure, etc. See Common Law, 12; Corpus Delicti, 2. 

3. Defeat justice — Technicalities should never be used to defeat justice or confuse pro- 

cedure. See Common Law, 12; Corpus Delicti, 2. 

TECHNICALLY GUILTY. 

1. Fraudulent enlistment, of. C. M. 0. 12, 1911, 5. 

TELEGRAMS. 

1. Desertion— Evidence in proving "Desertion." C. M. O. 110, 1896, 3. 

2. Evidence, as. C. M. O. 110, 1896, 3; G. C. M. Rec. 306S4, p. 303. 

3. Member of a general court-martial— Appointed by telegram, which was read and 

appended. C. M. O. 56, 1897, 2. 

4. Nolle prosequi— Entered by telegram. See Nolle Prosequi, 8. 

TELEGRAPHY, WIRELESS. See Wireless Telegraphy, 1. 
TEMPER, LOSS OF, BY OFFICER. See Officers, 117. 



626 THEFT. 

TEMPORARY APPOINTMENTS. 

1. Acting assistant dental surgeon. See Acting Assistant Dental Surgeons. 

2. Major general commandant. See Marine Corps, 48. 

TEN C03IMANDMENTS. See Sunday Laws. 
TENURE OF OFFICE. See "Office," 3. 

TERRITORIES. 

1. Jurisdiction of the courts in. File 3818, June 27, 1906. See also 26 Op. Atty. Gen., 91. 

TESTIMONY. See Evidence. 

TEXT BOOKS. 

I. Arguments— Use of text books in arguments before Naval courts-martial. See G. C. 

M. Rec. 23037, p. 89; Arguments, 1; Evidence, Documentary, 57. 

THANKS OF CONGRESS. See Congress, 8-10. 

THEFT. See also Larceny; Words and Phrases (Larceny). 

1. Aiding and abetting. See Aiding and Abetting, 5, 6. 

2. Burden of proof. See Burden of Proof. 9; Theft, 17. 

3. Corpus delicti. See Corpus Delicti, 1, 2. 

4. Drunkenness as a defense. See Drunkenness, 20, 22, 26, 49, 51, 52, 56, 88; State- 

ment of Accused, 16. 

5. Embezzlement and theft— Distinguished. G. O. 143, Oct. 28, 1869. 

6. Enlisted man— Charged with. C. M. O. 42, 1909, 3. 9; 49, 1910, 6; 1, 1913, 5; 20, 1913, 

4; 9, 1914, 3; 49, 1915, 21. 

7. " Feloniously " — Meaning of " feloniously" in a statute denning larceny. See 

Feloniously. 

8. Haitian— Native Haitian held on a charge of theft. See Manslaughter, 9. 

9. Intent— Necessary to prove specific intent in theft, which is same as larceny and steal- 

ing. See Drunkenness, 49, 88, 89; Intent, 5, 42, 49. 
10. Larceny— Same as " Theft." See Theft, 9. 

II. Officer— Charged with. C. M. O. 50, 1914. 

12. Ownership of stolen property— Either legal owner or one in possession may b» 

named as owner in a specification. See Theft, 22. 

13. Paymaster's clerk— Charged with. C. M. 0. 14, 1907. 

14. Prima facie— Cases of theft. C. M. O. 42, 1909, 3; 49, 1910, 6; 1, 1913, 6. 

15. Same— Proof of possession of stolen articles establishes a prima facie case of theft. 

C. M. O. 49, 1910, 6. 

16. Same — The possession of stolen property or articles recently after the commission 

of the theft is prima facie evidence of guilty possession, and if unexplained either by 
direct evidence or by the attending circumstances, or by the character and habits of 
the possessor or otherwise, it is taken as conclusive. C. M. . 1, 1913, 6. 

17. Proof of —Where it was proved that the accused was in possession of stolen property a 

short time after it was stolen, Held, prima facie case against him of theft, and the 
burden of proof was shifted to the accused to show that the possession was not unlaw- 
ful, and upon failure to do so court should find him guilty. A continued possession 
of stolen property and no effort made to return same to owner shifts burden of proof 
to defense to show that possession was an innocent one, and where such was not done 
the department held that the court should have found accused guilty of theft. C. M. O. 
42, 1909, 3-4; 49, 1910, 6. See also G. C. M. Rec. No. 22342; C. M. 0. 17, 1910, 11. 

Without an asportation, there can be no larceny. This asportation consists in re- 
moving the property from the place where it was before, it need not be actually car- 
ried away, and theslightest asportation is all that is necessary (12 A. & E. Ency, Law, 
763). File 7879-02, J. A. G., Sept. 20, 1902; 21 J. A. G., 105. 

18. Restitution. C. M. O. 20, 1913, 4. 

19. Restitution of money stolen, from pay of thief who deserted— Where a deserter 

absconded with a considerable sum of money belonging to the ship's cook, and in- 
tended for the purchase of provisions, it was held that there is no legal authority 
under which pay due the deserter at the time he absconded could be used to reimburse 
the persons who suffered loss bv the theft. See File 10988-02; 3852-02. See also 
Compt. Dec, Apr. 22, 1902. 

20. Robbery— Theft distinguished from robbery. See Robbery, 9. 



THEFT. 627 

21. Specific intent. See Drunkenness, 49, 88, 89; Intent, 7, 42, 49; Theft, 9. 

22. Specifications — Allegations of title— In certain specifications under a charge of "Theft" 

in a recent case, the ownership of the property alleged to have been stolen was laid 
in the persons in whose possession the property was at the time it was stolen. The 
court in its findings made certain exceptions and substitutions so that the specifica- 
tions as thus amended showed the legal ownership of the property. The rule is well 
settled that the ownership may be laid in indictments in the person who was in 

geaceable possession of the property, and whose possession was unlawfully disturbed 
y the taking; that the actual condition of the legal title is immaterial to the thief; 
that even a thief in possession may be described as owner when goods have been 
stolen from him by a second thief. (25 Cyc.,89, 90.) However, it is optional to name 
the true owner as such in the indictment, although the property was in the possession 
of another. (25 Cyc, 91.) These principles apply equally to the allegations of 
ownership in specifications tried by courts-martial, and were observed in preparing 
the charges and specifications in this case. However, the action of the court in 
making the exceptions and substitutions referred to, while not necessary, is not 
objectionable and conduces to accuracy by amending the specifications so as to 
conform precisely to the actual facts disclosed by the evidence. G. C. M. Rec. No. 
29422; File 26251-9280; C. M. O. 51, 1914, 9-10. 

23. Thief— Should not be retained in naval service. See Thief, 1. 

24. Same— Tagged "Thief"— No former jeopardy. See Jeopardy, Former, 43. 

25. Title— Allegations of title of stolen goods in specification. See Theft, 22. 

THEFT, IN VIOLATION OF CLAUSE 1 OF ARTICLE 8 OF THE ARTICLES 
FOR THE GOVERNMENT OF THE NAVY. 

1. Officer— Charged with. C. M. 0. 15, 1908, 2. 

THEFT, IN VIOLATION OF ARTICLE 14 OF THE ARTICLES FOR THE GOV- 
ERNMENT OF THE NAVY. 

1. Gunner— Charged with. C. M. 0. 8, 1879. 

THIEF. 

1. Naval service— Should not be retained in— The best interests of the naval service demand 

that, whatever the mitigating circumstances, a man who has been found guilty of 
theft shall not be retained therein. C. M. O. 66, 1894, 2. 

2. Same — A seaman, United States Navy, was tried by general court-martial by order 

of the commander in chief of the United States Atlantic Fleet, and found guilty of 
the charge of " Theft, " the three specifications thereunder being "proved by plea." 
He was sentenced to confinement at hard labor for a period of one year with corre- 
sponding forfeiture of pay, and to dishonorable discharge. 

The convening authority in approving the sentence mitigated the confinement to 
detention, thus providing a means whereby a self-confessed thief might effect his 
restoration to duty in an honorable status in the naval service. 

The Manual for Government of Naval Prisons, Prison Ships, and Disciplinary 
Barracks, page 1 of the Addenda, etc., limits the mitigation of sentences of confine- 
ment to detention to cases of men convicted of "purely military offenses." The 
mitigation of sentences involving confinement to detention in cases of men convicted 
of "Theft" is in direct conflict with the department's policy and precedents which 
exclude all persons convicted of "Theft" from being placed in detention among bovs 
under 21 years of age who have been placed in detention for "purely military offenses'." 

In accordance with the recommendation of the Bureau of Navigation and in order 
that the interests of justice and discipline, and particularly the standard maintained 
among detentioners may not suffer by this action, the department remitted the 
confinement, etc., and directed the discharge of the accused in accordance with the 
remaining terms of the sentence. File 26262-2440, Sec. Navy, Dec. 20, 1915; C. M. O. 
49, 1915, 21-22. 

3. Tagged "thief "—No former jeopardy. See Jeopardy, Former, 43. 

THREATENING AND ATTEMPTING TO ASSAULT HIS SUPERIOR OFFICER 
WHILE IN THE EXECUTION OF THE DUTIES OF HIS OFFICE. 

1. Enlisted man— Charged with. C. M. O. 23, 1910, 5. 

THREATENING AND PROFANE LANGUAGE. 

1. Massachusetts statutes. File 26251-2993:12. 

THREATENING LETTERS. See Officers, 118; Privilege, 3. 



628 TIME. 

THREATENING TO COMMIT SUICIDE WHILE DRUNK. 

1. Boatswain— Charged with. C. M. O. 60, 1888, 2. 

THROUGH INATTENTION AND NEGLIGENCE SUFFERING A VESSEL OF 
THE NAVY TO BE" HAZARDED. 

1. Officer— Charged with. C. M. 0. 19, 1910. 

THROUGH INATTENTION AND NEGLIGENCE SUFFERING A VESSEL OF 
THE NAVY TO BE RUN UPON A SHOAL. 

1. Officer— Charged with. C. M. O. 31, 1907; 32, 1913, 1. 

THROUGH INATTENTION AND NEGLIGENCE SUFFEREVG A VESSEL OF 
THE NAVY TO BE RUN UPON A SHOAL AND SERIOUSLY INJURED. 

1. Officers— Charged with. C. M. 0. 17, 1913; 2, 1914; 29, 1916. 

THROUGH INATTENTION AND NEGLIGENCE SUFFERING A VESSEL OF 
THE NAVY TO BE SERIOUSLY INJURED. 

1. Officer— Charged with. C. M. O. 31, 1916. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BE 
HAZARDED. 

1. Officers— Charged with. C. M. O. 82, 1906; 26. 1908. 

2. Warrant officer— Charged with. C. M. O. 15, 1912, 6. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BB 
RUN UPON A REEF. 

1. Officer— Charged with. C. M. O. 9, 1911. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BE 
RUN UPON A REEF AND STRANDED. 

1. Officers— Charged with. C. M. O. 32, 1894; 29, 1903; 25, 1909; 26, 1909; G. C. M. Ree. 
11192. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BE 
RUN UPON A ROCK AND GROUNDED. 

1. Officer— Charged with C. M. 0. 15, 1905. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BB 
RUN UPON A ROCK AND HAZARDED. 

1. Officer— Charged with. C. M. O. 7, 1893. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BE 
RUN UPON A SHOAL. 

1. Officer— Charged with. C. M. O. 43, 1906; 53, 1906; 3, 1907; 36, 1908; 1, 1909; 29, 1909; 
30, 1909; 17, 1913; G. C. M. Rec. 12965; C. M. O. 19, 1917. 

THROUGH NEGLIGENCE SUFFERING A VESSEL OF THE NAVY TO BE 
STRANDED. 

1. Officers— Charged with. C. M. O. 60, 1889; 29, 1891; 111, 1894; 50, 1903; 2, 1915; 23, 1916; 
26, 1916. 

THROUGH NEGLIGENCE SUFFERING PROPERTY OF THE UNITED 
STATES TO BE HAZARDED. 

1. Officer— Charged with. C. M. O. 26, 1908. 

TIME. 

1. Absence, unauthorized— Allegation of period of absence in specification. See Ab- 

sence, 10, 11; Absence from Station and Duty Without Leave, 29; Charges 
and Specifications, 92. 

2. Burglary. See Burglary, 7. 

3. Commission of offenses— Time of, should be alleged. See Charges and Specifica- 

tions, 92; Findings, 27, 32, 33, 35. 

4. Specification— When time is material. See Absence, 10, 11; Absence from Station 

and Duty Without Leave, 29; Charges and Specifications, 92; Findings, 27, 
32, 33, 35. 

5. Statute of limitations— Time alleged so that offense will come within. See Find- 

ings, 35. 



TREATIES. 629 

TITLES. 

1. "Admiral"— Under the Navy usage the temporary title of rear admiral follows the tem- 

porary rank and pay in the case of a line officer, because, unlike the staff officer, ha is 
at all times in the military and command branch of the service, to which alone th« 
ancient title of admiral appertains. (25 Op. Atty. Gen. 297, Dec. 20, 1904; 13 J. A. G., 
394, Dec. 28, 1904.) 

2. Army rule— Respecting titles. File 13-4, J. A. G., May 22, 1907. 

3. Chiefs of bureaus. See Bureau Chiefs, 19. 

4. Controversy— Brief history of controversy regarding titles. See Bureau Chiefs, 19. 

5. Correspondence. See Designations. 

6. Court-martial orders. See Court-Martial Orders, 38. 

7. Deck court officers. See Titles, 13. 

8. Line officers— Only line officers have title as well as rank, etc. See Rank, 17. 

9. Line and staff— Title and rank as between line and staff. See File 22724-16:1, J. A. G., 

Apr. 24, 1911, p. 4. 

10. Members of courts-martial— Error in title in precept. See Challenges, 15. 

11. Officers— Should be addressed by titles. 13 J. A. G., 254. See also Designations. 

12. Statutes. See Statutory Construction and Interpretation, 121. 

13. Summary court-martial and deck courts — Titles to be used by certain command- 

ing officers in convening summary courts-martial and deck courts. File 26287-1183, 
J. A. G., May 4, 1912. 

14. Theft— Allegations of title of stolen propercy in specifications. See Theft, 22. 

TORPEDO BOATS. 

1. Commanders— " Nerve" is a prime requisite, etc. See Collision, 6. 

2. Confinement— In fire room of a torpedo boat. See Confinement, 44. 

TRANSFERS. 

1. Coast Guard— Transfer of vessel. See Coast Guard, 3. 

2. Fleet Naval Reserve— Transfer of enlisted men to Fleet Naval Reserve. CM. O. 40, 

1916, 4. 

3. Marine Corps to Hospital Corps. File 3976-02; 9033-02; 5315-04, Sec. Navy, July 

5, 1904. 

TRANSFER CLOTHING ACCOUNTS. 

1. Evidence, as. C. M. O. 15, 1910, 8-9. 

TRANSPORTS. 

1. Army — Army courts and courts-martial have no jurisdiction over Marines on Army 
transports. See Army, 7. 

TRANSPORTATION. 

1. Applicants for enlistment. See Naval Reserve, 6. 

2. Minor may waive— A minor enlisting with the consent of his guardian has the same 

right as other enlisted men of the Navy to enter into agreement to waive transportation 
and to reenlist. File 4682-04, J. A. G., May 31, 1904. 

3. Naval Reserves. See Naval Reserve, 6. 

4. Retired enlisted men. See Retired Enlisted Men, 13, 14. 

5. Witnesses, Marine. See Witnesses, 108. 

TREATIES. 

1. Amity and commerce. See Treaties, 3. 

2. Date— "As respects property rights and the performance of undertakings between 

individuals, the courts have held that 'the date of a treaty is the date of its final rati- 
fication.' ( Wheaton's International Law, vol. 2, sec. 132.) 

"According to the same authority, it is, however, a principle of international law 
that 'so far as concerns the relations of the sovereigns concerned, it operates, when 
ratified, from the date of its signature."' File 26516-47, J. A. G., May 18, 1911, p. 3. 

3. Desertion— Desertion, per se, and unassociated with felony, is not included in the 

category of crimes commonly enumerated in treaties or conventions of extradition. 
In the past it has been considered in numerous treaties and conventions with foreign 
countries, but invariably in connection with the rights and privileges of consular 
officers as provided in treaties of Amity and Commerce. Extradition treaties concern 
crimes only. File 27403-132:1, J. A. G., Jan. 6, 1916. 

4. Same— Japan. File 27403-132:1, J. A. G., Nov. 6, 1916. and Jan. 6, 1916. 

5. Same— Greece. File 27403-132:1, J. A. G., Nov. 6, 1916, and Jan. 6, 1916. 



630 



TREATIES. 



6. Same — If any person belonging to the Navy or Marine Corps charged with crime deserts 

in the waters of any foreign state between which and the United States a treaty of 
extradition for the apprehension and delivery of persons charged with crime exists, 
the senior officer present shall take measures for his recovery in accordance with the 
provisions of such treaty. 

In no case shall force be used to recover deserters within foreign territorial limits 
or on board foreign ships. (R-3642.) See File 27403-132:1, J. A. G., Nov. 6, 1916, p. 5. 

7. Greece— Extradition of deserters. File 27403-132:1, J. A. G., Nov. 6, 1916. 

8. Japan. See File 27403-132:1, J. A. G., Nov. 6, 1916. 

9. Larceny — Larceny is an extraditable crime within the purview of existing treaties and 

for which extradition may be requested with competent right and propriety. File 
27403-132:1, J. A. G., Nov. 6, 1916, p. 5. 
'10. Merchant vessels of the United States — So far as lies within their power, com- 
manders in chief, division commanders, and commanding officers of ships shall 
protect all merchant vessels of the United States in lawful occupations, and advance 
the commercial interests of this country, always acting in accordance with inter- 
national law and treaty obligations. (R-1650.) 

11. Neutrals in time of war. See Treaties, 13. 

12. Seaman's Act of March 4, 1915 ( 38 Stat. 1164)— Abrogating effect of the Seaman's 

Act upon treaties. File 27403-132:1, Sec. Navy, Jan. 6, 1916. 

13. War— When the United States is at war, the commander in chief shall require all under 

his c omm and to observe the rules of humane warfare and the principles of international 
law. When dealing with neutrals he shall cause all under his command to observe 
the rules of international law and the stipulation of treaties, and expect and exact 
a like observance from others (R-1634). 

TREATING HIS COMMANDING OFFICER WITH DISRESPECT. 

1. Officer— Charged with. G. C. M. Rec. 6809. 

TREATING HIS SUPERIOR OFFICER WITH CONTEMPT WHILE IN THE 
EXECUTION OF HIS OFFICE. 

1. Gunner— Charged with. C. M. O. 1, 1893. 

2. Officer— Charged with. C. M. O. 33, 1896. 

TREATING WITH CONTEMPT HIS SUPERIOR OFFICER. 

1. Officer— Charged with. C. M. O. 51, 1882. 

TREATING WITH CONTEMPT HIS SUPERIOR OFFICER AND BEING DIS- 
RESPECTFUL TO HIM IN LANGUAGE AND DEPORTMENT WHILE 
IN THE EXECUTION OF HIS OFFICE. 

1. Master— Charged with. C. M. O. 21, 1882. 

2. Officers— Charged with. C. M. O. 15, 1914; G. C. M. Rec. 6404; 6486. 

TREATING WITH CONTEMPT HIS SUPERIOR OFFICER AND BEING DIS- 
RESPECTFUL TO HIM IN LANGUAGE AND DEPORTMENT WHILE 
£$ THE EXECUTION OF HIS OFFICE, IN VIOLATION OF ARTICLE 8, 
ARTICLES FOR THE GOVERNMENT OF THE NAVY. 

1. Officer— Charged with. C. M. O. 28, 1908. 

TREATY OF PEACE WITH SPAIN. See also War With Spain, 4. 

1. Ratified— On April 11, 1899. File 26516-47, J. A. G., May 18, 1911; C. M. O. 49, 1915, 24. 

See also Filipinos, 3. 

2. Signed— On December 10, 1898. File 26516-47, J. A. G., May 18, 1911. See also De- 

sertion, 133. 

TRESPASSING. See Line of Duty and Misconduct Construed, 104, 105. 
TRIALS. See also Speedy Trials. 

1. Accused— Responsible to notify interested parties. See Accused, 61; Charges and 

Specifications, 18. 

2. Army. See Akmy, 29; Court, 171. 

3. Careless. C. M. O. 74, 1899. 

4. Civil authorities— Date fixed for trial of enlisted men desired by civil authorities 

should be shown in requisition. See Civil Authorities, 46. 

5. Congress— Recommended the trial by general court-martial of a naval officer. See 

Congress, 11. 



TRIALS. 631 

» 

6. Courts of inquiry— Not trials. See Courts of Inquiry, 51. 

7. Delay in commencing— Delay that may be allowed accused to arrange for counsel 

and. prepare defense is matter within the discretion of the court, to be determined 
after hearing the reason for the delay requested. File 26504-111:3. See also Army, 13; 
Constitutional Rights of Accused, 17; Continuances, 1; Counsel, 20; Court, 134; 
Postponement. 

8. Delay over 10 days— Reports of cases. See Judge Advocate, 112; Speedy Trials, 2. 

9. Expedition — The department is anxious to reduce by every practicable means the time 

between the arrest of a prisoner and the final promulgation of the sentence. File 
26504-111 :329, Sec. Navy, May 4, 1915. See also Speedy Trials, 2. 

10. "Fair trial"— In reviewing a court-martial it is, as a rule, easy to determine whether 

or not there has been a fair trial. Every word spoken and every act done in con- 
nection with the proceedings of the court is duly recorded. 13 J. A. G., 325, June 
11, 1904. See also Evidence, 13. 

11. Full power trial of a naval vessel— Boilers exploded. C. M. O. 36, 1915; 37, 1915; 38, 

1915. 

12. Insane accused. See Insanity, 19, 32, 41. 

13. Joinder— Trials in joinder. See Joinder, Trial in. 

14. Jurisdiction of naval courts-martial— Over the personnel of the naval service 

after expiration of enlistment. See Breaking Arrest, 3; Enlistments, 8-11; 
Jurisdiction, 52, 97. 

15. Jury— Trials by jury are not required in the naval service. See Jury, 6. 

16. Members of courts-martial may demand trial— Where the convening authority 

of a naval court-martial feels that an individual member of a court-martial is deserving 
of severe strictures and criticism for his actions while serving as a member he should 
prefer or cause to be preferred charges against them. In cases where such is not 
done, but severe criticism is made, if the party reflected upon demands a trial by 
court-martial for the misconduct imputed, his application can not in general fairly 
be denied. See Criticism of Courts-Martial, 35, 36. 

17. Midshipmen— Subject to trial. See Midshd?men, 22, 27, 32, 85, 67, 88. 

18. Multiplicity of trials. See Summary Courts-Martial, 49; Trials, 26. 

19. Public trial. See Court, 126-128; Judge Advocate, 105. 

20. Record of proceedings — The fact that the trial is finished should invariably be noted 

in the record of a general court-martial. C. M. O. 14, 1910, 9. 

21. Second trial— Where the court on motion by counsel for the accused strikes out a charge 

and specification because it ''alleged seven distinct and separate offenses," tbe accused 
"may still be tried for the offenses stated therein" inasmuch as the charge and specifi- 
cation in question were stricken out as invalid. C. M. 0. 16, 1911, 4. See also Jeop- 
ardy, Former, 36, 38. 

22. Same— In criticizing several deck court cases the department stated in part: "It is 

manifest that failure to set forth in each specification the name and rate of the accused, 
the offense and the date of the commission thereof, and all other material facts con- 
nected with the offense not only militates against the accused, but makes possible 
a second trial for the same offense." C. M. O. 42, 1909, 16. 

23. Secrecy. See Court, 126-128, 171. 

24. Set aside. See Setting Aside, 16. 

25. Speedy trials. See Speedy Trials. 

26. Summary courts-martial— Multiplicity of trials. See Summary Courts-Martial, 

49. 

27. "Undue haste." See Court, 171; Criticism of Courts-Martial, 66. 

TRIAL COURSES. 

1. Rockland and Provincetown — In the matter of buying land and placing permanent 
beacons to mark the trial courses at Rockland and Provincetown. File 1S6-92 and 
1906-8 and 9, J. A. G., Jan. 17, 1907. 

"TRICING UP." 

1. Illegal punishment — An acting master was dismissed for inflicting illegal punishment, 
by "tricing up" it appearing that he was aware at the time of indicting such punish- 
ment that it was unauthorized by law. G. O. No. 2, Jan. 12, 1S63. 

TRUCE. See War, 3-5. 

"TRUE COPIES." See Certified Copies, 1, 2; Evidence, Documentary, 10, 58. 



632 UNDESIRABLE DISCHARGE. 

TRUMPETER, U. S. MARINE CORPS. 

1. General court-martial— Tried by and acquitted of "Manslaughter." C. M. 0. 4», 
1915, 12. 
TRYING CASE OUT OF COURT. 

1. Judge advocate, by. C. M. O. 61, 1894; 55, 1897; 28, 1909, 3; 37, 1909, 8; 42, 1909, 15; 

30, 1910, 5; 1, 1911, 4; 30, 1912, 6; 10, 1912, 7; 16, 1913, 4; 34, 1913, 8; 1, 1914, 6; 29, 
1914, 6; 42, 1915,, 8. See also Judge Advocate, 123, 124. 

2. Recorder, by. See Summary Couets-Maetial, 101. 

TYPEWRITING. 

1. Findings— Should not be in. C. M. O. 17, 1915, 3. See also Findings, 88. 

2. Sentence— Should not be in. C. M. O. 37, 1909, 4. See also Sentences, 110. 

TYPHOID FEVER. 

1. Fraudulent enlistment. See Fraudulent Enlistment, 27. 

2. Nature of. See Typhoid Prophylactic, 1. 

TYPHOID PROPHYLACTIC. 

1. Naval Instructions, 1913, 1-3212, prescribing that typhoid prophylactic shall 

be administered to all persons of the Navy and 3Iarine Corps who are under 
45 years of age, or who have not had a well-defined case of typhoid fever, 
is mandatory and does not admit of exceptions — The department has received 
several requests from officers to be excused from receiving typhoid prophylactic on 
account of various assigned reasons. In a recent request of this kind an adherence 
to a certain religious belief was stared as the basis of the request. 

The department has been obliged to deny this request as well as others of a similar 
nature for the reason that Naval Instructions, 1913, 1-3212, prescribing that tvphoid 
prophylactic shall be administered to all persons of the Navy and Marine Corps who 
are under 45 years of age, or who have not had a weU-defined case of typhoid fever, is 
both explicit in phraseology and mandatory in character and admits neither of doubt 
as to its intention nor of exception. 

In commenting upon this request the Bureau of Medicine and Surgery made the 
following remarks: 

"Typhoid fever is a communicable disease and its prevention by prophylactic 
measures is a well-known procedure, employed in foreign armies and navies as well 
as in our own. Its value to the service can only be evident if universally emploved 
* * *. This bureau has never regarded this measure as one for the benefit of the 
individual solely, but as a measure of prophylaxis for the benefit of the whole service, 
and for the suppression of a communicable and at the same time a preventable 
disease. With this end in view the bureau believes it has a right to expect the loyal 
support of all officers, their religious beliefs notwithstanding, as the end sought is 
military efficiency, and on broad principles is not incompatible with the primary 

grecepts of humahitarianism." (See File 26181-36. For cases in which enlisted men 
ave refused to take this treatment see G. C. M. Ree. Nos. 24756, 24S81, 21477, and 
31931.) C. M. O. 16, 1916, 9-10. See also File 26251-6149. 

2. Order— The Navy Department general order requiring the administration of typhoid 

prophylactic treatment is a legal order. An enlisted man sentenced to confinement 
for refusal to receive the above-mentioned treatment may, if he again refuses, be 
tried by court-martial for such latter refusal, which would constitute a second offense. 
An enlisted man under sentence of court-martial may be discharged as undesirable. 
See File 26262-1419:1. 

3. Refusing to submit— An enlisted man was tried by general court-martial for refusing 

to submit to an "antityphoid vaccination," on the charge of "Refusal to obey the 
lawful order of his superior officer. G. C. M. Rec. 24893. 

TYPHOON SIGNALS. C. M. O. 7, 1915. 

UNDESIRABLE DISCHARGE. 

1. Commanding officer— May not adjudge an undesirable discharge but the department 

may. C. M. O. 146, 1900, 2. 

2. Convict and fugitive from justice— Given undesirable discharge and turned over to 

civil authorities. See Civil Authorities, 12. 

3. "Parole violator" — Given undesirable discharge and turned over to civil authorities. 

See Civil Authorities, 8. 

4. Threat of —By convening authoritv. See Convening Authority, 65. 

5. Under sentence of court-martial. See Typhoid Prophylactic, 2. 



UNLAWFULLY DISPOSING OF PROPERTY. 633 

UNDISPUTED FACTS. See Criticism of Courts-martial. 

UNIFORM. 

1. Civilians— Purchasing from deserters. File 26516-49, J. A. G., June 13, 1911, p. ». 

See also Desertion, 12. 

2. Commanding officer— Uniform disarranged and drunk on shore in a foreign port. 

Tried by general court-martial. See Commanding Officers, 44. 

3. Definition— Of uniform. See File 26516-49, J. A. G., June 13, 1911, p. 2. 

4. Desertion— Discarding uniform as an inference of specific intent to desert. See De- 

sertion, 102, 111, 131. 

5. Detentioners. See Detentioner, 2. 

6. Discrimination against the uniform. See Discrimination Against Uniform. 

7. Philippine campaign badge — Is a part of the uniform. File 19245-43, J. A. G., 

Sept. 8, 1911. See also Philippine Campaign Badges, 1. 

8. Regulations. See Uniform Regulations. 

9. Retired officers— A civil engineer, retired with the rank of commander, is entitled 

to wear the uniform of that grade with distinguishing insignia of his corps. See 
File 795-05; 3319-03. 

10. Sale of. See File 26516-49, J. A. G., Jane 13, 1911. 

11. Solicitor — Investigation by solicitor of discrimination against the uniform. See 

Oaths, 41. 

12. Uniform of enlisted men— Confiscation and forfeiture of. See An. Rep. J. A. G., 

1908, p. 21. 

13. Unlawful wearing of — Arrest and proposed prosecution of a civilian for unlawfully 

wearing the uniform of the United States Navy. File 5012-60, J. A. G., Aug. 17, 1916. 

14. Same— In violation of section 125, act of June 3, 1916 (39 Stat. 216). File 21355-31, Sec. 

Navy, July 15, 1916. 
UNIFORM REGULATIONS. 
1. Regulations— Force and effect as. See Regulations, Navt, 14. 

UNIFORMITY OF SENTENCES. 

1. General courts-martial. C. M. O. 6 r 1909, 3; 1, 1913, 4; 10, 1913, 5; 16, 1913, 3. See also 

Sentences, 111, 112. 

2. Summary courts-martial. CM. O. 10, 1911, 8. See also Sentences, 111. 

UNITED STATES MARSHAL. 

1. Rewards — For delivering deserters. See Rewards, 2. 

UNITING WITH A MUTINOUS ASSEMBLY. 
1. Enlisted man— Charged with. C. M. O. 14. 1879. 

UNIVERSAL TRAINING. See Discipline, 2. 

"UNJUSTD7IABLE." See Assault, 27. 

UNLAWFUL AND FELONIOUS ENTRY. 

1. Enlisted man— Charged with. C. M. O. 42, 1892. 

UNLAWFUL ORDERS. See ORDERS, 67. 

"UNLAWFUL PURPOSE." 

1. Specification— In a specification under a charge of "Conduct to the prejudice of good 
order and discipline," it was alleged that intoxicants were by order of the accused 
brought into the recruiting office for the "unlawful purpose" of the accused. Held, 
That the words "unlawful purpose" can be found not proved by the court and the 
specification will still support the charge, the evidence snowing that the intoxicants 
were taken into the recruiting office in violation of law and regulation. G. C. M. Rec. 
30485, p. 807. See also Charges and Specifications, 49, 102. 

UNLAWFULLY CONVEYING SPIRITS OR ALCOHOLIC LIQUORS ON BOARD 
A VESSEL OF THE NAVY. 

1. Enlisted man— Charged with. C. M. O. 14, 1879. 

UNLAWFULLY DISPOSING OF PROPERTY OF THE UNITED STATES FUR- 
NISHED AND INTENDED FOR THE UNITED STATES NAVAL SERVICE. 

1. Warrant officer commissioned— Charged with. CM. O. 20, 1912. 



634 USING OBSCENE AND THEEATENING LANGUAGEo 

UNLAWFULLY DISPOSING OF PROPERTY OF THE UNITED STATES FUR- 
NISHED AND INTENDED FOR THE NAVAL SERVICE. 

1. Chief carpenter— Charged with. C. M. 0. 20, 1912. 

UNPROFESSIONAL CONDUCT UNBECOMING A MEDICAL OFFICER OF THE 
NAVY. 

1. Surgeon— Charged with. C. M. O. 59, 1882. 

UNSOUND MIND. See Insanity, 9. 

UNTRAINED MIND. See Insanity, 6. 

UNTRUTHFUL OFFICER. See Adequate Sentences, 11; Officers, 121. 

USAGES. See Customs of the Service, 6; Words and Phrases. 

USELESS PAPERS. 

1. Disposition of— The act of February 16, 1889 (25 Stat. 672) is applicable to useless papers 

on file with the board of labor employment, navy yard, Philadelphia. File 4496-77. 

2. Same— The act of February 16, 1889 (2*5 Stat., 672) is applicable to useless papers on 

file at Marine Corps posts. File 14287-5. 

3. Same— Useless papers in office of Judge Advocate General destroved. File 14287-20, 

J. A. G., Nov. 4, 1915. 

USING ABUSrV E AN D PROFANE LANGUAGE TOWARD HIS SUPERIOR 
OFFICER WHLLE IN THE EXECUTION OF THE DUTIES OF HIS 
OFFICE. 

1. Officer— Charged with. C. M. O. 26, 1913, 1. 

USING ABUSIVE AND THREATENING LANGUAGE TOWARD ANOTHER 
PERSON IN THE SERVICE. 

1. Enlisted man— Charged with. C. M. O. 21, 1910, 10. 

2. Officer— Charged with. C. M. O. 78, 1896. 

3. Warrant officer— Charged with. C. M. O. 25, 1908; 10, 1914. 

USING ABUSrVE LANGUAGE TOWARD ANOTHER PERSON IN THE 
SERVICE. 

1. Officer— Charged with. C. M. O. 60, 1904. . 

USING ABUSIVE, OBSCENE, AND PROFANE LANGUAGE TOWARD HIS 
SUPERIOR OFFICER. 

1. Enlisted man— Charged with. C. M. O. 23, 1910, 4. 

USING ABUSIVE, OBSCENE, AND THREATENING LANGUAGE TOWARD 
HIS SUPERIOR OFFICER. 

1. Enlisted man— Charged with. C. M. O. 23, 1910, 5. 

USING DISRESPECTFUL AND ABUSFPE LANGUAGE TO HIS SUPERIOR 
OFFICER. 

1. Officer— Charged with. C. M. O. 15, 1882. 

USING LANGUAGE DISRESPECTFUL TO THE PRESIDENT OF THE UNITED 
STATES. 

1. Officer— Charged with. G. O. 85, Oct. 11, 1867. 

USING MENACES TOWARD ANOTHER PERSON IN THE NAVY. 

1. Enlisted man— Charged with. C. M. O. 3, 1888. 

USLNG MUTINOUS WORDS. 

1. Enlisted man^-Charged with. C. M. O. 22, 1887. See also Mutiny. 

USING OBSCENE AND ABUSrVE LANGUAGE AGAINST ANOTHER PERSON 
IN THE NAVY. 

1. Officer— Charged with. C. M. O. 18, 1910, 1. 

USING OBSCENE AND THREATENING LANGUAGE TOWARD ANOTHER 
PERSON IN THE NAVAL SERVICE. 

1. Warrant officer (commissioned)— Charged with. C. M. O. 28, 1915. 



VESSELS. 635 

USING OBSCENE LANGUAGE TOWARD HIS SUPERIOR OFFICER. 

1. Enlisted man— Charged with. C. M. O. 30, 1910, 8. 

USING PROFANE, ABUSIVE, AND OBSCENE LANGUAGE TOWARD 
ANOTHER PERSON IN THE SERVICE. 

1. Gunner— Charged with. C. M. O. 212, 1901. 

2. Officer— Charged with. C. M. O. 18, 1910. 

USING PROFANE, OBSCENE, ABUSIVE, AND THREATENING LANGUAGE 
TOWARD ANOTHER PERSON IN THE SERVICE. 

1. Boatswain— Charged with. C. M. O. 69, 1904. 

USING PROFANE AND ABUSrVE LANGUAGE TOWARD ANOTHER PERSON 
IN THE NAVY. 

1. Officer— Charged with. C. M. O. 60, 1904; 45, 1909, 1. 

USING PROFANE AND ABUSIVE LANGUAGE TOWARD HIS SUPERIOR 
OFFICER. 

1. Officers— Charged with. C. M. O. 28, 1908; 26, 1913. 

USING PROVOKING AND REPROACHFUL WORDS TOWARD ANOTHER 
PERSON IN THE NAVY. 

1. Officer— Charged with. C. M. O. 23, 1886; 19, 1915. 

USURPATION. 

1. Court, by— Of functions of judge advocate. See Court,_ 99; Judge Advocate, 61. 

2. Same — Of functions and prerogatives of convening, reviewing and revising authority. 

See Adequate Sentences, 3-11, 13; Clemency, 13; Court, 17, 18. 

3. Judge advocate — Should not usurp functions of court. See Court, 98; Judge Advo- 

cate, 123-126. 

4. Recorder— Should not usurp the functions of the court See Summary Courts- 

Martial, 101. 

UTTERING SEDITIOUS WORDS. 

1. Enlisted man— Charged with. C. M. O. 14, 1910, 13. See also Sedition. 

VACCINATION. 

1. Office of Judge Advocate General— Employees in. See File 4488-112, J. A. G., Mar. 

15, 1913. 

2. Typhoid. See Typhoid Prophylactic. 

3. Smallpox— A medical officer was tried by general court-martial under the charge of 

"Neglect of duty," for neglecting and failing to advise his commanding officer of the 
necessity and advisabilitv for and for neglecting and failing to effect, the vaccination 
of such of the officers and crew as were not known by the accused to be protected by 
vaccination from smallpox, as it was his duty so to do. C. M. O. 35, 1914. See also 
Smallpox, l. 

VENEREAL DISEASE. 

1. Hospital Fund — Persons not earning pay. See Hospital Fund, 3, 6. 

2. Promotion of an officer. See Promotion, 212. 

VENEREAL PROPHYLACTIC. 

1. Court-martial— For refusal to take. See G. C. M. Rec. 21477. 

2. Sale of— Prohibited in ship's store. File 26181-39, Sec. Navy, Aug. 26, 1916. 

VERIFICATION OF EVIDENCE BY WITNESSES. See Evidence, 121, 122, 123. 

VESSELS. 

1. Boiler tubes— Purchase abroad of boiler tubes for a torpedo boat. File 4652, Sec. Navy . 

Dec. 4, 1891. 

2. Same— Use in a torpedo boat of boiler tubes manufactured within the United States 

from raw material of foreign production. File 27S2-92, Sec. Navv, Julv 7. 1892. 

3. Classification. See File 611-04, J. A. G.; 2267-04, J. A. G.; act of Mar. 3/1901 (31 Stat.. 

1133). 

4. Crank shaft— Purchase abroad of a crank shaft for a submarine. File 570-244. 

5. Foreign vessels— Use of foreign vessels for the transportation of coal. File 4390-19. 

J. A. G., Sept. 23, 1907. 

6. Foreign built vessels. File 4390-4, Mar. 23, 1907. 



636 VESSELS. 

7. Gold— Transportation of gold by vessels of the United States Navy. See Gold. 

8. Merchandise— Application of R. S. 4347. File 4390-19. 

9. Naval Militia— Liability for damages done by a vessel turned "over to the Naval 

Militia. See Collision, 14; Naval Militia, 3. 

10. Sale of— Does not include guns. 15 J. A. G., 115, Mar. 23, 1911. 

11. Transfer of— A vessel of the United States Navy to another department. File 3160-54, 

J. A. G., May 4, 1907. See also Revenue Cutter Service, 2. 

VIOLATING A LAWFUL ORDER ISSUED BY THE SECRETARY OF THE NAVY. 

1. Officer— Charged with. C. M. O. 80, 1905. 

VIOLATING OR REFUSING OBEDD3NCE TO ANY LAWFUL GENERAL OR- 
DER, ETC. 

1. Specific intent— Not necessary. See Intent, 2. 

VIOLATION OF A LAWFUL REGULATION ISSUED BY THE SECRETARY 
OF THE NAVY. 

1. Enlisted men— Charged with. C. M. O. 21, 1910, 6; 27, 1913, 5. 

2. Officers— Charged with. C. M. O. 22, 1890; 28, 1894; 30, 1896; 33, 1896; 52, 1898; 129, 

1898; 111, 1894; 50, 1903; 76, 1903; 48, 1904; 11, 1908; 38, 1909; 4, 1911, 3; 11, 1912; 7, 1913; 
39, 1913, 2; 17, 1914; 35, 1914; 4, 1915; 18, 1915; 27, 1916; 10, 1917; G. C. M. Rec. 16956; 
11192; 12142. See also C. M. O. 7, 1893; 82, 1892; G. C. M. Rec. 6135. 

3. Paymaster's clerk— Charged with. C. M. O. 38, 1913; 24, 1915. 

4. Warrant officers— Charged with. C. M. 0. 121, 1907; 7, 1909; 12, 1912; 15, 1912; 11, 1915. 

VIOLATION OF ARTICLE 13 OF AN ACT ENTITLED "AN ACT TO ADOPT 
THE REVISED INTERNATIONAL REGULATIONS TO PREVENT COL- 
LISIONS AT SEA." APPROVED MARCH 3, 1885. 
1. Officer— Charged with. C. M. O. Ill, 1894. 

VIOLATIONS OF ORDERS. 

1. Line of duty. See Line of Duty and Misconduct Construed, 107-112., 

VIOLATIONS OF VARIOUS ARTICLES OF THE ARTICLES FOR THE GOV- 
ERNMENT OF THE NAVY. (Phraseology not to be followed.) 

1. Master— Charged with. C. M. O. 16, 1882; G. C. M. Rec. 8380. 

2. Midshipman— Charged with. C. M. O. 128, 1905. 

3. Officers— Charged with. C. M. O. 76, 1903; 51, 1893; 41, 1892; 82, 1892; 35, 1892; 29, 1890. 

G. C. M. Rec. 6954, 7247, 7296. 

4. Paymaster's clerk— Charged with. C. M. O. 4, 1907; G. C. M. Rec. 6058. 

5. Warrant officers— Charged with. C. M. O. 26, 1906. 

VIOLATION OF SECTION 549, REVISED STATUTES, TO THE PREJUDICE, 
ETC. 

1. Officer— Charged with. G. C. M. Rec. 6359. 

VIOLATION OF SO MUCH OF ARTICLE 8, PAGE 9, OF THE LAWS RELATING 
TO THE NAVY (MARCH 3, 1883) AS REFERS TO SCANDALOUS 
CONDUCT TENDING TO THE DESTRUCTION OF GOOD MORALS. 

1. Enlisted man— Charged with. C. M. O. 32, 1893, and many others. 

VIOLENTLY ASSAULTING THE CORPORAL OF THE GUARD. 

1. Enlisted man— Charged with. C. M. O. 23, 1887. 

VOIR DIRE. See C. M. 0. 128, 1905, 2; G. C. M. Rec. 10196, p. 5; 27960, 45; Challenges, 13; 
Evidence, 124; Members of Courts-martial, 39; Words and Phrases. 

VOLUNTARY DRUNKENNESS. See Drunkenness. 

VOLUNTARY RETIJBEMENT. See Retirement of officers. 

VOMIT. See C M. O. 23, 1908; 24, 1908. 

VOTING. 

1. Confidential— The vote of the members of a general court-martial in determining the 

guilt or innocence of the accused is a confidential matter. C. M. O. 125, 1900, 2. See 
also Court, 191; Criticism of Courts-martial, 22, 36; Oaths, 47. 

2. Congress— Vote of thanks by Congress. See Congress, 8-10. 

3. Dishonorable discharge— Effect on. See Dishonorable Discharge, 5. 



VOTING. 637 

4. General courts-martial. See Court, 191; Criticism of Courts-martial, 22; 

Oaths, 47. 

5. Jurisdiction— Of the department to decide whether an officer or enlisted man has the 

right to vote. See Voting, 7-11. 

6. Midshipman— Question whether a dismissed midshipman is eligible to vote in a 

certain jurisdiction depends upon the laws of the State in which he claims the right, 
and is not one under the jurisdiction of the Navy Department. File 5252-79, June 
19, 1916. 

7. Officers and enlisted men— The department has no jurisdiction to decide whether 

certain enlisted men and officers of the naval service have a right to vote in a certain 
city. The only point involved is whether the persons possess the necessary qualifi- 
cations prescribed by the laws of the State, and the local officers are not only pre- 
sumably qualified to determine this question, but they are charged with the respon- 
sibility of so doing and may be required to defend their action in the civil courts, if 
they deny the right of voting to one who asserts his eligibility. Thus the question 
is a judicial one, and the Attorney General of the United States has repeatedly held 
that executive officers of the Federal Government are not authorized to render 
decisions upon judicial questions, not only because this would be an unwarranted 
excess of their legal powers, but because their decision might bring the Executive 
into conflict with the civil courts. It was therefore held that the department could 
not, either legally or with propriety, decide the question presented. File 9212-67, 
J. A. G., Nov. 1, 1915; C. M. 0. 42, 1915, 13. See also File 9212-73, J. A. G., May 2, 1916: 
9212-83, J. A. G., Oct. 14, 1916; 9212-84, Sec. Navy, Oct. 4, 1916. 

8. Same — The right of a soldier, sailor, or marine, home on furlough, to vote, depends upon 

the Constitution and laws of the State where the man resides, and therefore is a ques- 
tion within the jurisdiction of the local State authorities and not of the Navy Depart- 
ment. File 9212-54, Nov. 30, 1914. See also File 3027, J. A. G., Oct. 14, 1905. 

9. Same— The department is aware of no Federal law which would permit an enlisted 

man on duty on board a battleship to register, without actually returning, in a city 
of Georgia and become a citizen of a certain county therein and be eligible to vote. 
Attention invited to the Constitution of the State of Georgia, 1877, Art. II, Sec. I, 
Par. II, and Sec. II, Par. I. File 9212-84, Sec. Navy, Oct. 4, 1916. 

10. Same— Right to vote in the various States. File 9212-83, J. A. G. , Oct. 4, 1916 (Illinois); 

9212-84, Sec. Navy, Oct. 4, 1916 (Georgia); 28550-14, J. A. G., Mar. 16, 1916 (Missouri); 
9212-71, Sec. Navy, Mar. 27, 1916; 9212-67, J. A. G., Nov. 1, 1915; 9212-73, J. A. G., 
May 2, 1916; 5252-79, June 19, 1916; 9212-56 (New York). 

11. Pensacola, Fla.— Right of inhabitants of Warrington and Woolsey to vote. See 

File 7090-04. 

12. Residence of retired officers— Concerning the residence of a retired naval officer and 

his right to vote in the State of New York, his residence having been changed to 
Washington, D. C, in the Bureau of Navigation, Navy Department; and certain 
New York laws and decisions on the subject. See File 9212-56. 

13. Retired officer. See Voting, 12. 

14. Revealing— Vote on finding or sentence of general and summary courts-martial. See 

Court, 189-191; Criticism of Courts-martial, 22; Oaths, 47. 

15. Rig lit of officers and enlisted men to vote. See Dishonorable Discharge, 5: 

Voting, 6, 7-12, 16. 

16. Summary courts-martial— Department has no jurisdiction to decide and can not 

with propriety express any opinion upon the subject as to the effect of discharge by 
summary court-martial upon a man's right to vote in a certain State. File 9212-Sl, 
J. A. G., Aug. 2,1916. 

17. Same— Member disclosing vote on finding or sentence. C. M. O. 125, 1900, 2; 42, 

1915, 8-9; 49, 1915, 21. See also Court, 189; Criticism of Courts-martl\l, 22, 36; 
Oaths, 47. 

18. Same— Member called upon bv a "court of justice" to reveal vote. See Court, 1S9. 

19. Thanks of Congress. See Congress, 8-10. 

VULGAR AND INDECENT ACTS. See Medical Officers of the Navy, 11. 
WAITING ORDERS PAY. C. M. O. 27, 1915, 8. See also Pay, 61. 

WAIVING. 

1. Absence of accused — Cannot be construed as a waiver. (Weinnan v. U. S., 36 Ct. Cls. 

236.) 

2. Age limit. See Midshipmen, 3-6, 63. 

3. Allowances. See Allowances, 14. 



638 WAIVING. 

4. Circulars of the department— By the Secretary of the Navy. See Acting Assist- 

ant Surgeons, 2; Marine Corps, 66. 

5. Counsel— Accused may waive counsel at any time during the trial. C. M. O. 42, 1909, 

6. See also Counsel, 2. 

6. Criminality— Waiving of rights as to self-incrimination. See SELF-LNCRLMrNATioN, 18. 

7. Departments circulars. See Acting Assistant Surgeons, 2. 

8. Errors in charges and specifications— Waived by plea of "guilty." See Absence 

From Station and Duty Without Leave, 29. 

9. Evidence, documentary. See Evidence, Documentary, 60. 

10. Fraudulent enlistment— Waived by department. See Fraudulent Enlistment, 

75, 76, 94, 95. 

11. ** Guilty," plea of — Waiving of unsubstantial defects in charges and specifications. 

See Absence From Station and Duty Without Leave, 29. 

12. Navy Regulations. See Deserters, 11; Regulations, Navy, 90,95. 

13. Original documentary evidence. See Evidence, Documentary, 61. 

14. Plea of " Guilty "—Waiving unsubstantial defects in charges and specifications. 

See Absence From Station and Duty Without Leave, 29. 

15. Pay. See Leave of Absence, 6, 12, 13. 

16. Physical qualifications. See Acting Assistant Dental Surgeons. 

17. Proceedings, irregular— If the accused neglects to insist on his rights at the proper 

time he waives them. See Estoppel, 6. 

18. Record of proceedings— Accused waived right to copy. See Record of Proceed- 

ings, 32, 33. 

19. Regulations. See Deserters, 11; Regulations, Navy, 90-95. 

20. Self-incriniination. See SELF-LNCRlMrNATiON, 18. 

21. Statute— The provisions of a statute may not be waived by the department. See 

Marine Corps, 66. 

22. Statute of limitations. See Statute of Limitations, 24. 

23. Testimony — Witness cannot waive reading. See Judge Advocate, 134. 

24. Transportation. See Apprentices, 2. 

WAR. 

1. Armistices — Doubtless the most important international agreement ever entered into 

by the Executive of the United States without the advice and consent of the Senate 
was the armistice, or peace protocol, with Spain, concluded at Washington, August 12, 
1S98. (5 Moore's Digest of International Law, 213.) File 26516-47, J. A. G., May 
IS, 1911, p. 8. 

2. Same— If the suspension of hostilities is for a more considerable length of time or for a 

more general purpose, it is called a truce or armistice. Such suspension is either general 
or partial. * * * But a general truce or armistice applies to the general operations 
of war, and whether it be for a longer or shorter time extends to all the forces of the 
belligerent States and restrains the state of war from producing its proper effects, 
leaving the contending questions between them in the same suuation in which it found 
them. Such a truce has sometimes been called a temporary peace, though in such 
cases the word peace is used only in opposition to acts of war and not in opposition to 
a state of war. (7 Moore's Digest of International Law, 327.) File 26516-47, J. A. G., 
Mav 18, 1911, p. 9. 

3. Same— "It is also stated by Hall in his International Law (sec. 192) that the terms 

* * * 'armistice,' 'truce,' and 'suspension of arms' are applied to agreements 
for a cessation of hostilities for a limited duration or extent." File 26516-47, J. A. G., 
Mav IS, 1911, p. 9. 

4. Same — " It is stated also that 'at the expiration of the truce hostilities mav recommence 

without anv fresh declaration of war.' (1 Kent, 161.)" File 26516, J. A. G., May 18, 
1911, p. 9. 

5. Same— "A truce or suspension of arms does not terminate the war, but it is one of the 

commercia belli which suspends its operations. (1 Kent's Comm., 160.)" File 
26516-47, J. A. G., May 18, 1911, p. 6. 

6. Asleep on post— Enlisted man tried by general court-martial for sleeping on post during 

war. C. M. O. 91, 1898; 95, 189S, 2. 

7. China campaign — "A case which does not appear to have gone to the courts, but 

where an executive branch of the Government held the word ["war";) to have the 
more liberal meaning, is that of the officers and enlisted men of the Army who served 
in China beginning with May 26, 1900. They were held to be entitled to the increased 
allowance of pav for service "in time of war." (Digest of Opinions of the Judge Advo- 
cate General of the Army, 1912, p. 1055IB4.)" File 2S653-1, Sec. Navy, July 24, 1916, 
p. 2. 



war. 639 

8. Civil War. See Civil War; Civil War Service; Name, Change of, 16. 

9. Clemency — Granted because of excellent war record of accused. See Clemency. 67. 

10. Corean forts— Capture of the Corean forts, June 9, 10, 1871. Held, That the "expedition 

which resulted in the capture of the Corean forts, June 9 and 10, 1871, comes within 
the meaning of the words 'in any war' as used in the act of April 27, 1916" (39 Stat. , 
53). File 28653-1, Sec. Navy, July 24, 1916, p. 2. See also Medals of Honor, 4. 

11. Definition— War is that state in which a nation prosecutes its rights by force. (Alaire 

v. U. S., 1 Ct. Cls., 238.) File 28653-1, Sec. Navy, July 24, 1916, p. 1. 
"Public war is a state of armed hostilities between sovereign nations or Governments." 
(Stockton, p. 293.) 

12. Desertion in time of war. • See Desertion, 28, 29, 132-137. 

13. Europe — Neutrality of naval officers with reference to war in Europe. See Neu- 

tral, 4. 

14. Formal declaration — It has been held that no formal declaration of war by Congress 

or proclamation by the President was necessary to define and characterize an Indian 
War. (Alaire v. U. S., 1 Ct. Cls., 238; Marks v. TJ. S., 28 Ct. Cls., 147.) File 28653-1, 
Sec. Navy, July 24, 1916, p. 1. 

15. General courts-martial— Convening of , in time of war. See Convening Authority, 

27. 

16. Indian Wars. See War, 14. 

17. Maritime war — The special objects of maritime war, which are. inter alia, to capture 

or destroy the military forces of the enemy, his maritime commerce, and to prevent 
his procuring war material from neutral sources, and to protect and to defend its own 
national territory, property, and sea-borne commerce, within the area of maritime 
warfare, which comprises the high seas or other waters that are under no jurisdiction, 
necessarily gives to a belligerent the right to adopt all unprohibited methods to suc- 
cessfully attaining its ends. File 10451-02, J. A. G., Dec. 9, 1902; 22 J. A. G. 2-3. 

18. Medals of honor — " To hold that the word 'war,' as used in the act under consideration 

(Apr. 27, 1916, 39 Stat., 53), means only a perfect war, or one where Congress, by 
special enactment, has declared that a war exists, would be a highly technical and 
narrow construction, and it is not believed that it would at all accord with the liberal 
purpose of Congress in providing for the special reward for those distinguished men 
who would otherwise receive the benefits of the act. File 28653-1, Sec. Navy, July 
24, 1916. 

19. Merchant crews — Status in time of war. See Merchant Vessels, 2. 

20. Munitions of war. See War Munitions. 

21. Neutrality. See Neutral; Treaties, 13. 

22. Object of greater penalty for desertion in time of war— "A consideration of the 

object of the greater possible penalty for desertion in time of war leads to the conclu- 
sion that its object was to hold persons in the service when the country's need for 
them was most pressing— to repel invasion, to defend the country, or to suppress in- 
ternal war. In time of peace no such penalty is necessary; it is commensurate with 
the necessity." File 26516-47, J. A. G., May 18, 1911, p. 9. See also Desertion, 137. 

23. Offenses in time of war. C. M. O. 67, 1898; 33, 1899. See also Desertion, 28, 29, 

.132-137; Offenses, 11; War, 22. 

24. Peace— Desertion committed after signing of treaty of peace. See Desertion, 134. 

In a foreign war, a treaty of peace would be the evidence of the time when it closed. 
(U. S. v. Anderson, 19 Wall., 70.) File 26516-47, J. A. G. , May IS, 1911, p. 9. 

25. .Rights of a. belligerent war vessel— The right of a belligerent war vessel to screen 

its lights and omit fog signals in order to shield its presence from an enemy, particu- 
larly when employed on scout duty, would seem to be axiomatic. File 10151-02, 
J. A. G., Dec. 9, 1902, p. 2; 22 J. A. G. 3. 

26. Service. See Civil War Service; War Service. 

27. Spain. See War With Spain. 

28. "State of war" distinguished from an "act of war"— Although acts of war may 

terminate for a time, or permanently, a state of war does not close until the ratifi- 
cation of a treaty of peace. A state of war may exist when no hostile acts take place. 
File 26516-47, J. A. G., May 18, 1911. 

29. State of— Although acts of war may terminate for a time or permanently, a state of 

war does not close until the ratification of a treaty of peace, and until the belligerents 
are thus morally bound to cease acts of war a state of war still exists, and the need 
for men does not end. While acts of war are necessarily done in time of tear (or closely 
preceding or following it), nevertheless a state of war may exist when no hostile acts 
take place. It seems to be evident that a time of war is practically synonymous with 
a state of war, both logically and upon authoritv. File 26515-47, J. A. G., May IS, 
1911, quoted in File 26282-68, J. A. G., Oct. 6, 1911, p. 2. 

50756°— 17 41 



640 WARRANTS FOR PARDONS. 

WAR IN EUROPE. 

1. Neutrality— Officers. See Neutral, 4. 

WAR MUNITIONS. 

1. Employment of officer— By a foreign corporation manufacturing. C. M. O. 29, 1915, 

10-11. See also Retired Officers, 28, 31. 

WAR OF THE REBELLION. See Name, Change of, 16. 
WAR PRISONERS. See Prisoners of War. 

WAR SERVICE. 

1. Retirement of enlisted men— Credit for double time. See Retirement of Enlisted 

Men, 2. 

2. Service on a practice ship — While at the Naval Academy during the Civil War. File 

1494-04. See also File 1494-04, Mar. 7, 1904. 

WAR WITH SPAIN. 

1. Date when ended— The date of the signing of the treaty (Dec. 10, 1898) is the earliest 

on which war with Spain can be considered to have terminated for any purpose. 
File 24368-11, J. A. G., Mar. 14, 1914. See also Eliot A. De Pass et al. v. U. S., decided 
by Ct. Cls. Mar. 16, 1914, No. 21402. 

2. Enlistment during— The date of the signing of the protocol, August 12, 1898, did not 

end the war, as hostilities might have thereafter recommenced; and accordingly 
the enlistment of a man on August 16, 1898, was an enlistment "during * * * the 
War with Spain" within the meaning of the act , June 25, 1910. File 24368-11, 
J. A. G., Mar. 14, 1914. 

3. Protocol. See War With Spain, 2, 4. 

4. Treaty of peace— " On December 10, 189S, the treaty of peace was signed, and on April 

11, 1899, the ratifications thereof were exchanged and the treaty proclaimed." (File 
26516-47, p. 2.) [See also Jurisdiction, 108.] 

" Notwithstanding the signing of the protocol and the suspension of hostilities, a 
state of war between this country and Spain still exists. Peace has not been declared 
and can not be declared except in pursuance of the negotiations between the peace 
commissioners authorized by the protocol." (22 Op. Atty. Gen., 190.) File 26516-47, 
J. A. G. , May 18, 1911, p. 8. A state of war did not in law cease until the ratification 
in April, 1899, of the treaty of peace. (Hijo v. U. S., 194 U. S., 315, 323.) File 26516-47, 
p. 9. See also Treaty of Peace With Spain. 

5. Service of men — Under assumed names. See Name, Change of, 16. 

WARNING. 

1. Accused— Not necessary that accused be warned that any statement he makes might 

be used against him. See Confessions, 26, 27. 

2. Same — Should the accused plead either "Guilty" or "Guilty in a less degree than 

charged," the court shall warn him that he thereby precludes himself from the benefits 
of a regular defense by the former plea, and as to the acts confessed by the latter. 
(R-778 (l).) See Accused, 64; Arraignment, 33; Guilty in a Less Degree than 
Charged, 10. 

3. Accused as witness — Not to be warned when he resumes status. C. M. O. 47, 1910, 8; 

15, 1910, 5; 31, 1910, 13. See also Witnesses, 10. 

4. Confession— Not necessary that accused should be warned. See Confession, 26, 27. 

5. Counsel as witness— Not to be warned or shown as withdrawing when he leaves 

witness stand. See Counsel, 54. 

6. Crimination— Court may caution ignorant witnesses of their privilege as to crimi- 

nation. C. M. O. 49, 1910, 9; 14, 1910, 11-12; 29, 1914, 13. See also SELF-lNCRrMlNA- 

TION, 8. 

7. Judge advocate as witness — Not to be warned when he resumes status. CM. O. 

37, 1909, 9; 15, 1910, 5; 26, 1910, 8; 31, 1910, 3. See also Judge Advocate, 133. 

8. Member as witness— Not to be warned when he resumes status. C. M. 0. 15, 1910, 5; 

26, 1910, 8. See also Judge Advocate, 133; Members of Courts-martial, 53. 

9. Oath — Witness should be cautioned that his oath is still binding if he continues his 

testimony after a recess, or is recalled. See Recess, 3. 

10. Officer of the Deck— To commanding officer. See Officer-of-the-Deck. 

11. Witnesses. See Judge Advocate, 133. 

WARRANTS FOR PARDONS. See Pardons, 55. 



WARRANT OFFICERS. 641 

WARRANT OFFICERS. 

1. Acting warrant officers. See Acting Boatswains; Acting Gunner; Acting 

Machinists; Acting Pay Clerks; Acting Warrant Officers. 

2. Appointment— Discharge of a man from his enlistment by rating him as a mate or 

appointing him as a warrant officer. (See R. S., 1409.) Also when commissioned as 
warrant officers. See File 8627-03. 

3. Boatswains and chief boatswains— Are classed as line officers. See Command, 21. 

4. Borrowing money— From enlisted men. See Borrowing Money, 3. 

5. Carpenters and chief carpenters — Are classed as staff officers. See Command, 21. 

6. Command— Who should take command. File 17789-15; 26806-54; 5210-2, J. A. G., 

Dec. 16, 1907. 

7. Same— Classification with reference to line and staff. See Command, 11, 21. 

8. Courts-martial — Warrant officers (not commissioned) may not sit as members. 

C M. O. 7, 1914, 11; 6, 1915, 5. 

Commissioned warrant officers are entitled to sit as members of general court- 
martial. See Chief Boatswains, 2. 

Warrant officers, if actually commanding a naval vessel may convene summary 
courts-martial. See Boatswains, 10; Court, 196; Summary Courts-Martial, 7, 
21, 105. 

9. Deck court — Warrant officers (not commissioned) may not act as deck court officer. 

See Court, 192; Deck Courts, 62. 

10. Same — Warrant officer actually commanding a naval vessel may convene. See Deck 

Courts, 4. 

11. Deposits. See Deposits, 4. 

12. Desertion. See Civil Authorities, 49; Desertion, 138. 

13. Gunners and chief gunners— Are classed as line officers. See Command, 21. 

14. Leave of absence— The act of August 29, 1916 (39 Stat., 578), provides: " Warrant 

officers shall be allowed such leave of absence, with full pay, as is now or may hereafter 
be allowed other officers of the United States Navy." Held, That as there is no express 
or implied language used in this case which would give the above provision retroactive 
operation, advised that same takes effect from August 29, 1916. File 17789-25, Sec, 
Navy, Sept. 29, 1916. • 

15. Machinists— By act of March 3, 1899 (30 Stat., 1007), the grade of warrant machinist 

was established, to which grade appointments were to be made after examination 
open to (1) machinists serving in the Navy as petty officers and (2) machinists in civil 
life not over 30 years of age. File 17789-15, J. A. G., Dec. 13, 1909. 

16. Same — Under act of May 4, 1898 (30 Stat., 1,007), the appointment of certain officers, in- 

cluding warrant machinists, from civil life was authorized. Held, That this was not 
intended to limit, but to enlarge power of appointment, and persons in naval service 
may be appointed. File 3259-98. 

17. Machinists and chief machinists— Exercise of command by. See Command, 9-11 

21. 

18. Same— Are classed as line officers. See Command, 21. 

19. Naval Militia— Physical examinations. See Naval Militia, 29. 

20. Numbers, loss of. See Numbers, Loss of, 15; Warrant Officers, 29, 30. 

21. Pay clerks and chief pay clerks— Are classed as staff officers. Sec Command, 21 

22. Pharmacists and chief pharmacists— Are classed as staff officers. See Com- 

mand, 21. 

23. Precedence of commissioned warrant officers— Line officers shall take rank in 

each grade according to the dates of their commissions. (R. S. 1407.) A Chief Boat- 
swain is classed as a line officer. (See Command, 21.) File 11130-36, J. A. G., Dec 2S 
1916. 

24. Probation— Chief boatswain placed on probation. Case approved bv the President 

G. CM. Rec, No. 24405. 

25. Retired boatswain— Tried by general court-martial. G. C M. Rec, 32614. 

26. Retired chief boatswain— Tried by general court-martial. C. M. O. 15, 1915 

27. Retirement. See Retirement of Officers, 53. 

28. Sailmakers and chief sailmakers— Are classed as stall officers. See Command 21 

29. Sentence— The department favors loss of pay rather than loss of members for com- 

missioned warrant officers. C M. O. 48, 1915, 5. See also Pay, 100. 



642 WARRANT OFFICERS. 

30. Same— The law governing the promotion of a commissioned warrant officer does not 

give him the right of promotion by reason of seniority, and the department has on 
numerous occasions expressed its disapproval of a form of sentence which involves 
loss of numbers in the case of a commissioned warrant officer as practically it is without 
any effect. In order that there may be uniformity in the sentences adjudged, it is 
desirable that courts-martial use the foUowing form and make it a basis for adjudging 
sentences in the cases of commissioned warrant officers: 

"The court, therefore, sentences him , , to be restricted to his ship or 

station for a period of ( ) months, and to lose dollars (S ) per 

month of his pay for a period of ( ) months." C. M. O. 37, 1914: 52, 19.4. 

31. Staff officers— Carpenters and chief carpenters, sailmakers and chief sailmakers, 

pharmacists and chief pharmacists, pay clerks and chief nay clerks, are classed as staff 
officers. See Command, 21. 

32. Summary courts-martial — A warrant officer when actually commanding a naval 

vessel may convene summary courts-martial. See Court, 196; Summary Courts- 
martial, 7, 21, 105. 

33. Same — A warrant officer (other than commissioned warrant officers) may not sit as a 

member of a naval court-martial. See Court, 192, 194; Warrant Officers, 8. 

34. Same— Commissioned warrant officers may sit as members of summary courts-martial. 

See Chief Boatswains, 2. 

WARRANT OFFICER'S STEWARD. 

1. General court-martial— Tried by. C. M. O. 90, 1890; 98, 1894. 

WATCH OFFICERS. See also Officer-of-the-Deck. 

1. Drunkenness of. See Drunkenness, 99. 

2. Leaving station before being regularly relieved— " It must, indeed, be obvious to 

the most ordinary intelligence that if an officer can not be trusted in his watch, he 
has yet to learn the simplest practical duties of his profession, and is unfitted for a 
station where the lives of others, as well as the honor of his country, may depend on 
his vigilance and fidelity." G. O. 31, Mar. 22, 1864. 
t 3. Loyalty and zeal— A board of investigation in making its report stated that the watch 
officers of the ship "seem to lack familiarity, if not with the regulations, at least with 
the customs and traditions of the Navy as defining the loyalty and zeal which should 
characterize their attitude toward their commanding officer and their ship." File 
3558-04, J. A. G., Apr. 21, 1904. See also C. M. O. 86, 1898. 

WEAK-MINDED. See Insanity, 6. 

WEAPONS. 

1. Carrying concealed deadly weapons. See Carrying Concealed Weapons, 1. 

WEATHER. 

1. Extension of time for building a naval vessel — Severe winter weather is not regarded 
as a sufficient ground for claiming an extension of time for building a naval vessel. 
The contractors are presumed to have assumed the risk of delay on such account. 
File 3788-04, May 31, 1904. 

WEDDINGS. 

1. Common law marriage. See Death Gratuity, 12; Wife, 3, 5. 

2. Prisoner— Married while in a naval prison. See Marriage, 2. 

WHEN ON SHORE ABUSING AND MALTREATING AN INHABITANT. 

1. Enlisted man— Charged with. C. M. O. 49, 1915, 10. 

WHEN ON SHORE PLUNDERING AN INHABITANT. 

1. Enlisted man— Charged with. C. M. 0. 17, 1910, 11; 21, 1910, 15. 

WHOLLY RETIRED. 

1. Definition— " Wholly retired" is a phrase coined for the purpose of conveying, with 
reference to officers, the same idea as attaches to the word "discharged " when applied 
to enlisted men. File 26260-1392 and 697, J. A. G., June 29, 1911, p. 25£. 

WIDOW. 

1. Death gratuity— Payment to. See Death Gratuity, 30. 

2. Naturalization of. See Citizenship, 39. 



wife. 643 

WIFE. 

1. Allotments— Chief carpenter confined in Government Hospital for the Insane. See 

Allotments, 3. 

2. Citizenship of. See Citizenship, 40. 

3. Common law wife— Defined and discussed. File 26254-1936, J. A. G., Jan. 29, 1916. 

See also Death Gratuity, 12; Wife, 5. 

4. Same— Death gratuity. See Death Gratuity, 12. 

5. Common law wife as a witness— In the case of a coal passer, United States Navy, 

tried by general court-martial, there was called by the prosecution a witness whose 
competency the defense challenged on the ground that she was the common law wife 
of the accused. The defense introduced testimony to show the relation existing 
between the accused and the witness, and that such relation created a common law 
marriage relation between them. Counsel for the defense also presented a brief to 
the court, setting forth the laws of Pennsylvania governing such status, which laws 
supported counsel's contention. The court properly sustained the objection of the 
defense and declared the witness incompetent on the ground that she was the common 
law wife of the accused. G. C. M. Rec. No. 32186; C. M. O. 22, 1916, 8. 

6. Divorce. See Civil Courts, 7. 

7. Nonsupport of wife— By husband (officer). See Civil Courts, 7. 

By husband (enlisted man). File 7657-408, Sec. Navy, Oct. 28, 1916. 

8. Privilege — Judge Advocate objected to testimony of accused on ground that his state- 

ments were confidential between husband and wife. G. C. M. Rec. 31509, p. 51. 

9. Quarrel, assault, and strike — A warrant officer (gunner) was tried by general court- 

martial, in that he did "quarrel with, assault, and strike his wife." C. M. O. 5, 1913. 

10. Willfully and maliciously and without justifiable cause, assault, strike, and 

choke" his wife — By officer who was tried by general court-martial for the offense, 
under the charge of " Conduct unbecoming an officer and a gentleman." G. C. M. 
Rec. No. 31509. 

11. Witness against her husband— The accused attempted to introduce his wife as a 

witness in his behalf. Objection thereto was made by the judge advocate and prop- 
erly sustained by the court. The judge advocate cited in support of his objection 
CM. O. 21, 1910, p. 13 etseq.; also Secretary of the Navy's letter of March 9, 1912, File 
26251-5820, which latter reference cites further C. M. O. 17, 1910, p. 7; Winth., p. 507; 
and Forms of Procedure, 1910, p. 136. (To the same effect, see File 5°59-41, J. A. 
G., May 16, 1907.) Counsel for the accused cited in support of the competency of a 
wife to testify in behalf of her husband, Jones on Evidence. A reference to this work 
on evidence (sec. 753) shows that contrary to the contention of counsel for the accused, 
the rule is stated therein as follows: 

"In any criminal prosecution, neither spouse is a competent witness for or against 
the other. A well-recognized exception to this rule, arising from necessity, exists 
in prosecutions for personal injury committed by one spouse upon the other." C. 
M. O. 31, 1914, 2. 

This class covers all communications of a confidential nature made during the con- 
tinuance of marriage. In personal assaults, however, of the one against the other, 
the testimony of either as against the defendant is admissible. ( Forms of Procedure, 
1910, p. 143.) See also G. C. M. Rec. 22029; 24813; File 5859-41, J. A. G., May 16, 1907. 
26251-5S20; 36 J. A. G., 369; Witnesses, 52 (p. 651). 

12. Same— In a summary court-martial case where the court permitted the wife of the 

accused to testify the department disapproved the finding and acquittal, staling in 
part: "In view of the above, and also the fact that had the testimony of the wife of 
the accused been excluded the court would probably have arrived at a different 
finding, the finding and acquittal on the first specification are disapproved." File 
26287-3064, Sec. Navy, July 27, 1915. 

13. Same— Whereas it might appear that no good ground exists to exclude the testimony 

of either the husband or wife for the other, public policy has caused the rule to be 
laid in common law that either is incompetent to testify either for or against the other. 
One of the principles upon which this rule is founded is that, though called in behalf 
of the other, yet no witness is privileged to impart only what favorable point may be 
within his or her knowledge, but must submit lo cross-examination, and under such 
procedure might be called upon to disclose facts of a very damaging nature, which 
might be so serious as to materially injure the other's cause, even to the extent of 
a conviction, and by so doing the domestic relations would be seriously affected and 
probably family peace destroyed. 



644 wife. 

Hence the rule, though departed from in some States, is fixed in so far as United 
States courts are concerned, and naval courts-martial in their proceedings should be 
governed by the rules of evidence as laid down in such courts. 

The following excerpts bearing on this changing of the rule in some of the States, 
are taken from Federal Reporter (vol. 32, p. 571): 

Neither the removal of the disability of interest, nor allowing the defendant in a 
criminal action to testify in his own behalf, renders the wife of such defendant a com- 
petent witness. The rule excluding her testimony where her husband is a party rests 
solely upon public policy. (U. S. v. Crow Dog (Dak), 14 N. W. Rep., 437.)" The 
common-law rule disabling the husband and wife from being witnesses for or against 
each other has been changed in Iowa so far as to permit them to testify for each other 
in a civil proceeding by one against the other. (Parcell v. McReynolds, 33 N. W. 
Rep., 139.) In Pennsylvania, the statute only disables the husband and wife from 
giving evidence against each other. (Pleasonton v. Nutt, 8 Atl. Rep., 63.) In Michi- 
gan, the husband can not give testimony for or against the wife without her consent, 
except when the title to the separate property of either is in litigation between them, 
when the statute permits either to testify to facts which lie at the foundation of the 
ownership of the property. (Hunt v. Eaton, 21 N. W. Rep., 429.) In Minnesota, 
neither husband nor wife can give testimony for or against the other without the 
other's consent, except in the case of a civil action maintained by one against the 
other. (Huot v. Wise, 6 N. W. Rep., 425.) The same statute has been enacted in 
Utah. (U. S. v. Bassett, 13 Pac. Rep., 237.) In Florida, the common-law rule has 
been modified to the extent of permitting the wife to testify where her husband is 
a party; but the same right is not accorded to the husband where the wife is a party. 
(Schnabel v. Betts, 1 South. Rep., 692.) In Vermont, the wife has been rendered a 
competent witness in a number of cases, but the disqualification of the husband 
exists as at common law, except in divorce cases. (Witters v. Sowles, 28 Fed., 121.) 

The States of Illinois and Wisconsin have also made special rules regarding the com- 
petency of the husband and the wife as witnesses for or against the other. 

In the case of the United States v. Jones (District Court, D. South Carolina, October, 
1887) (32 Fed., 569), the court said: 

"There can be no doubt that at common law a wife is not a competent witness for 
or against her husband. And this is so, not on account of interest, but on the ground 
of public policy. (1 Greenl. Ev., par. 334; Stein v. Bowman, 13 Pet., 221; Lucas v. 
Brooks, 18 Wall., 452.) 

"There exists no statute of the United States removing this disability. No act 
of the State of South Carolina has changed the common law on this subject. (State v. 
Workman, 15 S. C, 545.) And, although the rule has been put upon the ground that 
confidential communications between husband and wife should not be disclosed, 
it has been applied to a case in which it was sought to prove an alibi by the wife. 
(State v. Dodson, 16 S. C, 453.) In actions for divorce, and for violence to her persom 
the wife has been permitted to testify. (U. S. v. Smallwood, 5 Cranch, C. C, 35.) 
These are exceptions. It was error, therefore, to permit her to be called to testify." 

In the case of Stein v. Bowman (38 U. S. Rept., 222) on appeal to the Supreme 
Court of the United States, one of the points of contention related to the fact that the 
wife of one of the parties to the cause had been placed upon the stand as a witness. 

The court in this case recited as follows: 

"It is, however, admitted, in all the cases, that the wife is not competent, except 
in cases of violence upon her person, directly to criminate her husband; or to disclose 
that which she has learned from him in their confidential intercourse. Some color 
is found in some of the elementary works for the suggestion, that this rule, being 
founded on the confidential relations of the parties will protect either from the neces- 
sity of a disclosure; but will not prohibit either from voluntarily making any dis- 
closure of matters received in confidence; and the wife and the husband have been 
viewed, in this respect, as having a right to protection from a disclosure, on the same 
principle as an attorney is protected from a disclosure of the facts communicated to 
him by his client. 

" The rule which protects an attorney in such a case is founded on public policy, 
and may be essential in the administration of justice; but this privilege is the rule 
which protects the domestic relations from exposure, rests upon considerations con- 
nected with the peace of families. And it is conceived that this principle does not 
merely afford protection to the husband and wife, which they are at liberty to invoke 
or not, at their discretion, when the question is propounded; but it readers them in- 
competent to disclose facts in evidence in violation of the rule." 



wife. 645 

Winthrop on page 507 states that though the general rule of the law of evidence, 
founded on public policy, that neither the husband nor wife is competent as a witness 
either for or against the other, though departed from in some of the States, is strictly 
held in the criminal courts of the United States and in courts-martial, and that it extends 
to all cases. C. M. O. 21, 1910, 13-15. See also Evidence, 82 (p. 223.) 

WILKES EXPEDITION. See File 9386-1418, J. A. G., Jan. 20, 1916. 

WILLS. 

1. Ambiguous description of beneficiaries — "Greenleaf also says in his work on evi- 
dence (vol. 1, s. 291, p. 411, 10th ed.), in considering the cases of ambiguous description 
of beneficiaries under wills: * * * 'The general principle in all these cases is this, 
that if there be a mistake in the name of the devisee, but a right description of him, the 
court may act upon such right description.' * * * 

"It may be admitted, that, in all cases in which a difiiculty arises in applying 
the words of a will * * * to the person of the devisee, the difficulty or ambiguity, 
* * * may be rebutted and removed by the production of further evidence upon 
the same subject calculated to explain * * * who was the person really intended 
to take under the will. * * * But the cases to which this construction applies 
will be found to range themselves into two separate classes, * * *. The other 
class of cases is that, in which the description contained in the will * * * of the 
person who is intended to take, is true in part, but not true in every particular. 
As, * * * where an estate is devised to a person whose surname or Christian 
name is mistaken; or whose description is imperfect or inaccurate; in which latter 
class of cases parol evidence is admissible to show * * * who was the devisee 
intended to take, provided there is sufficient indication of intention appearing on 
the face of the will to justify the application of the evidence." (Miller v. Travers, 
8 Bing. 244, cited in Greenleaf, sec. 301, p. 431, 10th ed.) File 26543-48 and 48:1, J. A. 
G., Oct. 10, 1910, p. 4. 

2. Mariner at sea— Under the laws of New York unwritten wills of personal property 

are allowed when made "by a mariner while at sea." It is understood that similar 
statutory provisions exist in other jurisdictions, but are not general. File 7657-231, 
J. A. G., May 1, 1914; 26250-477:6§, J. A. G., Oct. 6, 1914. 

3. Unwritten wills. See Wills, 2. 

"WILLFUL AND MALICIOUS." C. M. O. 146, 1901, 4. 

"WILLFUL DESTRUCTION." See Guilty in a Less Degree Than Charged, 50. 

WILLFUL DESTRUCTION OF GOVERNMENT PROPERTY. 

1. Paymaster's clerk— Charged with. C. M. O. 37, 1912. 

"WILLFUL INJURY." See Guilty in a Less Degree Than Charged, 50. 

WILLFUL NEGLECT OF DUTY. 

1. Officers— Charged with. C. M. O. 1, 1882; 6, 1883. 

WILLFULLY. See also Knowingly; Manslaughter, 13 (p. 353). 

1. Definition— The word "whlful" or "willfully," is a term used in averring or describing 
an act, particularly one charged as a crime, to show that it was done in the free activity 
of the perpetrator's will. CM. O. 14, 1910, 11. See also CM. O. 47, 1910, 8; 30, 1910, 
9; 23, 1911, 5; 10, 1912, 6-7. 

2. Fraudulent enlistment. See C M. O. 12, 1911, 5. 

3. Maliciously — "Willfully" distinguished from "maliciously." See Maliciously, 1. 

WILLFULLY AND DELIBERATELY. See "Deliberately and Willfully." 

WILLFULLY AND KNOWINGLY. 

1. Definition. See G. C M. Rec. 24983. 

WILLFULLY AND MALICIOUSLY. 

1. Assault. See Assault, 28. 

2. Definition— Concerning the part of the finding that the words "willfully and malicious- 

ly" were not proved, these words have formed part of speoifu'atiohs of offenses of 
assault and battery of various kinds in the Navy for many years. The word "will- 
fully" has in law a number of meanings, depending upon the necessity for its use. 
Thus, it signifies intentionally as distinguished from accidentally; orconsciously; 



646 WILLFULLY AND MALICIOUSLY. 

or designedly; or regardless of whether an act is done rightfully or wrongfully; or 
with evil intent; or governed by the will, without yielding to reason; or knowingly; 
or a willingness to commit an act. (Words and Phrases, etc., v. 8, p. 7468, et seq.) 
And as also said in the same work, citing cases (p. 7479): 

"< Willful' is a word of familiar use in every branch of the law, and it amounts to 
nothing more than this: That the person knows what he is doing, and is a free agent." 
C. M. O. 10, 1912, 6. 

WIRELESS TELEGRAPHY. 

1. Interference with— By private parties. File 7239-4, June, 1907. 

WITHDRAWAL. 

1. Charges and specifications. See Nolle Prosequi. 

2. Resignations, of— After a resignation has been accepted it may not be withdrawn. 

See Resignations, 27, 28. 

"WITHOUT JUSTIFIABLE CAUSE." See File 26251-12159, Sec. Navy, Dec. 9, 1916, 
p. 15; Findings, 62; C. M. O. 5, 1917. 

WITNESSES. 

1. Accused— Shall enjov the right to have compulsory process for obtaining witnesses 

in his favor, etc. See Constitutional Rights of Accused, 17. 

2. Same— Right to be confronted by witnesses and afforded an opportunity to cross- 

examine them. See Constitutional Rights of Accused, 16. 

3. Accused as witness in his own behalf— Formerly, in criminal prosecutions, the 

accused could not testify, but by the act approved March 16, 1S78 (20 Stat., 30), it was 
provided that the " accused shall at his own request, but not otherwise, be a competent 
witness, and his failure to make such request's hall not create a presumption against 
him.'' Care must be taken by the court that the accused is not placed on the stand 
unless he, himself, requests to" be permitted to testify, otherwise a fatal error is com- 
mitted. The record must affirmatively show that the statutory request was, in 
fact, made. (Forms of Procedure, 1910, p. 141.) See in this connection C. M. O. 65, 
1907. 

With reference to the fact that no presumption lies against the accused on 
account of his failure to testify, the Supreme Court held that it was not allowable 
to make ''comment, especially hostile comment, upon such failure. - ' "The minds 
of the jurors,'' it was further held, "can only remain unaffected from this circumstance 
by excluding all reference to it." (Wilson v. U. S., 149 U. S., 60.) It is accordingly 
highly improper for the judge advocate, in summing up the case for the prosecution, 
toWnment on the failure of the accused to take th3 stand in his own behalf. (Forms 
of Procedure, p. 141.) 

4. Same — In weighing the evidence of the accused the Supreme Court has held that 

"the testimony of the defendant in a criminal case is to be considered and weighed 
by the jury, taking all the evidence into consideration, and giving such weight to 
the testimony as in their judgment it ought to have." (Forms of Procedure, 1910, 
p. 140.) 

The testimony of an accused should not be accorded entire credit unless corrob- 
orated. He is necessarily an interested party and very probably would color his 
testimonv in order to make his acts appear in as favorable' light as possible. (C. M. O. 
42, 1909, 4-5; 28, 1910, 6; 14, 1913, 4; 20, 1913, 5; 22, 1913, 5.) See also Witnesses, 7. 

5. Saine — "The law provides that the accused shall at his own request but not otherwise, 

be a competent witness and shall be allowed to testify in his own behalf." (Forms 
of Procedure, 1910, p. 33; C. M. O. 117, 1902, 9.) 

•• Parties to the cause testifying on their own offer are considered as thereby waiving 
their privilege as to the subject matter of their testimony in chief and must submit 
to a full cross-examination thereon, notwithstanding the" answers tend to criminate 
or disgrace them." (Revnolds' Stephen on Evidence, p. 172, art. 120. See also 
Foster"*;. Pierce, 11 Cush.\ 437, 59 Amer. Dec. 152; Fitzpatrick v. U. S.,178 U S. 
304; C. M. O. 55, Mar. 1, 1910, p. 10; 14, 1910, p. 12; 17, 1910, pp. 12-16; 26, 1910, p. 4; 
28, 1910, p. 4: 6, 1913, p. 4; 8, 1913, p. 5.) "Where an accused party waives his con- 
stitutional privilege of silence, takes the stand in his own behalf, and makes his 
own statements, it is clear that the prosecution has a right to cross-examine him 
upon such statement with the same latitude as would be exercised in the case of an 
ordinary witness, as to the circumstances connecting him with the alleged crime. While 
no inference of guilt can be drawn from his refusal to avail himself of the privilege 



WITNESSES. 647 

of testifying, he has no right to set forth to the jury all the facts which tend in his 
favor without laying himself open to cross-examination upon those facts. * * * 
Indeed, we know of no reason why an accused person who takes the stand as a witness 
should not be subject to cross-examination as other witnesses are." (Fitzpatrick 
v. U. S., 178 U. S. 304; C. M. O. 17, 1910, pp. 13-14.) 

"It is not allowable to make comment, especially hostile comment," of the failure 
of the accused to take the stand in his own behalf (Forms of Procedure, 1910, p. 34; 
C. M. O. 31, 1910, p. 3), "and his failure to make such request shall not create any 
presumption against him" (Forms of Procedure, 1910, p. 33). C. M. O. 29, 1914, 
14-15. See also C. M. O. 54, 1902; 40, 1909, 2; 49, 1910, 9; 17, 1910, 12-16; G. C. M. Rec, 
21318, 21662, 22065, 22502. 
5. Same — Should not be placed on stand without his consent to identify a document — 
The submitting of documents to the accused for identification practically amounts 
to placing him upon the stand as a witness to identify papers used against him by 
the prosecution, which is contrary to the provisions of the act of March 16, 1878 (20 
Stat., 30). 

7. Same— The testimony of the accused unsupported bv corroborative evidence should 

not be accorded entire credit. C. M. O. 42, 1909, 4, 5; 28, 1910, 6; 14, 1913, 4; 20, 1913, 5; 
22, 1913, 5. See also Witnesses, 4. 

8. Same— Should not be shown as withdrawing after testifying. C. M. O. 47, 1910, 8; 

23, 1910, 5. See also Accused, 5. 

9. Same— Testimony of accused should be carefully scrutinized and weighed. C. M. O. 

14, 1913, 4; 20, 1913, 5; 22, 1913, 5. See also C. M. O. 63, 1899, 1-2; Witnesses, 4. 

10. Same — Should not be warned— It is improper and contrary to the Navy Regulations 

and Forms of Procedure, 1910, page 26, to warn or caution the accused to not converse 
upon matters pertaining to the trial during its continuance. C. M. O. 47, 1910, 8; 

15, 1910, 5; 23, 1910, 5; 31, 1910, 3. See also G. C. M. Rec. 21217; 21279; 21401; 21422; 
Judge Advocate, 133; Warning, 3. 

11. Same — It is improper for the judge advocate to comment upon the fact that the accused 

does not take the stand and testify in explanation of certain matters developed by the 
testimony. Such comment is improper, it being the right of the accused to determine 
for himself the question whether he should or should not take the stand in his own 
behalf. The act approved March 16, 1878 (20 Stat. 30), contains the following pro- 
vision: "That in * * * proceedings against persons charged with the commis- 
sion of crimes, offenses, and misdemeanors, in * * * courts-martial and courts 
of inquiry * * * the person so charged shall, at his own request but not otherwise, 
be a competent witness. And his failure to make such request shall not create any 
presumption against him." C. M. O. 117, 1902, 8-9. 

12. Acquittal— Casts no reflection upon any witness, etc. See Acquittal, 31. 

13. Affirmation. See Oaths. 

14. Affray— Witness of. See Affray. 

15. Appearance and manner— Of witnesses while testifying. See Court, 198; Evi- 

dence, 129; Witnesses, 52. 

16. Arresting accused— Testimony of person arresting accused should be corroborated if 

practicable. See Arrest, 17; Evidence, 33, 34. 

17. Assistance — While on the witness stand is irregular. See Counsel, 56; Judge Ad- 

vocate, 129. 

18. Cautioning— Ignorant witnesses. CM. 0.14,1910,12. See also Self-incrimination, 8. 

A witness on stand at beginning of recess should be cautioned that oath is still 
binding at end of recess. (Sec Recess, 3.) When a witness is recalled he should be 
warned that the oath previously taken is still binding. C. M. O. 47, 1910, 5. 

19. Character witnesses. See Evidence, 12-22. 

20. Charges and specifications— Reading to witnesses. Sec Charges and Specifi- 

cations, 105. 

21. Children. See Witnesses, 52. 

22. Civil authorities— Persons in naval service desired by civil authorities as witnesses. 

See Civil Authorities, 50-52: General Order No. 121, Sept. 17, 1914. 

23. Civil courts— Naval constructor appearing as a witness in a case where the United 

States was the complainant. Right to accept "ordinary mileage and attendance 
fees." File 4565-4, Oct. 23, 1906. 

Right of an employee of the department who attends court as a witness other- 
wise than as a witness"for the Government, to draw salary during t he period of absence. 
File 6036-2, Apr. 5,1907. 

24. Same— Judge of a civil court as a witness. Sec Deck Courts, 58. 



648 WITNESSES. 

25. Civilian witnesses — Fees for, before a court of inquiry, See Expert Witnesses, 3, 4. 

26. Same — Compulsory attendance of civilian witnesses before naval courts-martial. 

C. M. O. 88, 1895, 15. See also Constitutional Rights of Accused, 17. 

27. Same — Safe-Keeping of certain civilian witnesses for the Department of Justice. File 

7018-487, J. A. G., Oct. 7, 1915, quoting File 26276-60; 2824-295. See also File 1778, 
May 25, 1905; Coast Guard, l. 

28. Common law wife — As a witness for or against her husband. See Wtfe, 5. 

29. Competency of —Objection must be made before witness leaves stand. See Evidence, 

79-84; Witnesses, 52. 

30. Complaining prosecuting witness. G. C. M. Rec. 30562, p. 36. 

31. Complaining witness. C. M. O. 53, 1910, 2; 54, 1910, 2. 

32. Compulsory process— For obtaining witnesses for the accused. See Constitutional 

Rights of Accused, 17. 

33. Congress— Member of the House of Representatives as a witness before a naval court 

of inquiry. See Congre ss , 1 2. 

34. Contempt of court. See Contempt of Court. 

35. Coroner— As witness. C. M. O. 5, 1913, 11. See also Confessions, 10. 

36. Counsel for accused — Not to be warned or shown as withdrawing. See Counsel, 

54; Warning, 5. 

37. Same— Not permitted to object to a witness answering a question which might crimi- 

nate the witness. See Self Incrimination, 16. 

38. Same— Should not improperly assist witness on stand. C. M. O. 49, 1915, 10, 11. See 

also Counsel, 56. 

39. Court— The record of proceedings should show that the court had been afforded an 

opportunity to question witnesses. CM. O. 36, 1914, 6. 

40. Court, examined by— Scope of examination— Questions asked by members of the 

court are subject to objection either by the judge advocate or counsel for the accused, 
and if the objection is sustained, the question is recorded as having been asked "by 
a member." (C. M. O. 88, 1895, p. 13; 17, 1910, p. 7.) If, however, the objection is 
overruled, it is recorded as a question by the court and must be answered. (Forms 
of Procedure, 1910, p. 26.) 

In questioning witnesses the court occupies an impartial position, seeking only to 
obtain additional light on the question at issue, hence the rule that objection may be 
made by either party who may be adversely affected by the asking of improper 
questions. 

A member may put such questions as he desires; though, since members must be 
impartial and without prejudice, questions by them should, in general, be for the 
purpose of making clear the meaning of testimony already given. 

With reference to this subject, it is said by Winthrop in his work on Military Law 
and Precedents (vol. 1, pp. 429-430): 

"While it is no part of the province of the court to conduct either the prosecution 
or the defense, it is open to any member to put questions to the witnesses for either 
side. But this, though it may be done at any stage of a protracted examination 
where some matter, which may be forgotten if not noticed at the moment, has not 
been made quite clear by the witness, is in general postponed until both the parties 
have concluded their examinations, and is then resorted to for the purpose only or 
mainly of the elucidation of some part of the testimony which has been left obscure. 
A member may also suggest a question to be put by the judge advocate or accused 
where he has omitted to elicit some material particular. Further, while the court 
can not legally 'originate' evidence, i. e., take the initiative in providing any part of 
the proofs, yet where, with a view to a more thorough investigation of the case, it 
desires to hear certain evidence not introduced by either party, it may properly call 
upon the judge advocate to procure the same if practicable, adjourning for a reasonable 

Eeriod to allow time for the purpose. New testimony thus elicited must of course 
e received subject to cross-examination and rebuttal by the party to whom it is 
adverse." 

The rules applied in the civil courts with reference to the examination of witnesses 
by the court, are stated as follows in Cyclopedia of Law and Procedure (vol. 40, pp. 
2439-2442): 

"It is proper for a trial judge to ask a witness questions for the purpose of informing 
himself or the jury as to any matters material to the issues, whether the case be a civil 
or a criminal one, provided the questions are not such as to injure or prejudice the 
rights of either party. * * * 



WITNESSES. 649 

" Ordinarily a very few questions by the court will suffice to clear up a doubtful mat- 
ter. * * * But it has been held that where in a criminal case the examination of 
defendant by counsel left the evidence indefinite and conflicting as to some points, 
the action of the court in subjecting him to a lengthy examination as to such points, 
but without opening up any new subject or putting questions in a prejudicial form, did 
not call for a new trial, although it was not to be commended. 

"Where the court undertakes to interrogate a witness the same rules as to the form 
of questions as apply to an examination by counsel should be applied, although the 
court may, in its discretion, put leading questions to the witness when necessary to 
elicit the facts, repeat questions previously asked, or call for a repetition of previous 
statements. * * * 

"The trial judge may ex mero motu [of his own mere motion] call to the stand wit- 
nesses who have not been called by either party, or, when necessary to arrive at the 
true facts, recall a witness who has already testified in order to question him further." 

Generally speaking it may be said that members of courts-martial may impartially 
examine witnesses for the prosecution or defense, with a view to arriving at the truth 
and are allowed greater latitude in this respect than the parties; but this power can 
not be so exercised as to admit evidence which is clearly improper. (G. C. M. Rec, 
29422.) This point was presented in the present case during the examination of a 
witness called by the court, said witness being the officer who had previously con- 
ducted, an official investigation of the accusations against the accused before the 
department ordered his trial by court-martial. This witness had no personal knowl- 
edge concerning any of the facts at issue, but was asked by a member to repeat un- 
sworn statements made to him during his investigation by one of the witnesses who 
had been before the court and testified for the prosecution. This question clearly 
called for hearsay testimony concerning the facts of the case, and the objection thereto 
made by counsel for the accused, was properly sustained. The only possible ground 
on which such testimony could have been admissible would have been for the purpose 
of impeaching the witness for the prosecution. However, no foundation had pre- 
viously been laid, as is required, by asking the witness, when on the stand, whether 
witness had not, at a specified time and place, made a certain statement contradictory 
of the testimony given before the court. This foundation, as stated, had not been 
laid, and the prosecution and defense had both rested when the investigating officer 
was called as a witness by the court, and was asked by a member the question above 
mentioned for the purpose of impeaching the prosecution's witness. Under the 
circumstances, this question was open to objection either by the judge advocate or 
counsel for the accused. C. M. O. 19, 1915, 3-5. See also C. M. O. 72, 1895, 2; 88 
1895, 13; 80, 1898. 

41. Same— Leading questions— The court, during the examination, acting as judges, may 

propound leading questions. One of the natural parts of the judicial function, in it's 
orthodox and sound recognition, is the judge's power and duty to put to the witness 
such additional questions as seem to him desirable to elicit the truth more fully. This 
just exercise of his functions was never doubted at common law; the judge could even 
call a new witness of his own motion, and could seek evidence to inform himself 
judicially; much more could he ask additional questions of a witness already called 
but imperfectly examined. 

It follows that a judge's questions may be leading in form, simply because the reason 
for the prohibition of leading questions has no application to the relation between 
judge and witness. 

The confusion of a witness would be a further valid reason why leading questions 
might, in the discretion of the court, be asked. (See Wigmore, Sec. 784.) File 
26262-1194, J. A. G., June 16, 1911, pp. 7-8. 

The court may, in its discretion, put leading questions to the witness when neces- 
sary to elicit facts. See Witnesses, 40. 

42. Same— The court is privileged to call witnesses or recall those who have previously 

testified to clear up any doubtful points in the case, but when such action is taken 
the witness should not be referred to as one called in rebuttal; neither should such be 
classed as a witness for the prosecution or the defense, but simply as one called by the 
court. CM. 0.21. 1910, 12. 

43. Court should assist— Where accused desires certain witnesses. C. M. 0. 17, 1910, 8-10. 

44. Court of inquiry— Civilian witnesses. See Expert Witnesses, 3. 

45. Same — Has power to issue like processes to compel witnesses to appear and tesiify 

as United States courts of criminal jurisdiction. See Courts of Inquiry, 52. 



650 WITNESSES. 

40. Same — Witnesses before courts of inquiry testify under oath. See Courts of In- 
quiry, 53. 
47. Same— Witness fees. See Courts of Inquiry, 3, 4. 
4S. Same — Member of Congress as witness. See Congress, 12. 

49. Same — Examination of witnesses by court. See Courts of Inquiry, 55. 

Evidence before a court of inquiry is under oath. See Courts of Inquiry, 53. 

50. Credibility— Degrading questions may not be asked if they are only asked to impair 

the credibility of the witness. See Self-Incrdiination, 11. 

51. Same— It is irregular to introduce the service record of a witness, after he has left the 

stand, for the purpose of attacking his credibility, reading from said record extracts 
which in no way affect his credibility or general character. C. M. O. 47, 1910, 4-5. 
See also Service Records, 25. 

52. Same — May be affected by admission upon cross-examination of a conviction of an 

offense involving moral turpitude — During the trial a witness for the prosecution 
was Questioned in cross-examination by counsel for the accused as follows: 

"28. Q. Do you remember ever having been punished for having another man's 
clothing in your possession?" 

This question was objected to by the judge advocate on the ground that it was 
irrelevant and covered ground that had nothing to do with this case. 

Counsel. "I have the right to test his credibility." 

Judge Advocate. "The witness should be instructed that the question he has 
been asked involves a matter of criminality." [See Self-incrimination, 1L] 

The court then asked the counsel if he wished to attack the credibility of the witness. 

Counsel. "Yes sir. Not as to his reputation but as to his credibility as a witness 
in this case. I want to prove by his own mouth what he has been punished for. 
I have a right to do that. That rule holds good in a court of law when a witness gets 
on the stand. 'Did you not serve three months for larceny or housebreaking' is a 
perfectly competent question in a court of law." 

The judge advocate did not reply. The court instructed the witness that he did 
not have to answer questions that would tend to incriminate or degrade him. [See 
Self-incrimination, 11, 12,17.] 

Witness. "Yes, sir. I don't remember having another man's clothes. I remem- 
ber having one man's jumper in my possession and was found guilty by the court; 
but after the court my division officer made it his business to look it up and I was 
found not guilty. I did five days bread and water, which was a very serious offense 
in the Navv, and I would have gotten more, if I was really guilty, by a summary 
court-martial." (Rec, pp. 29, 30.) 

In regard to the above the judge advocate, on the one hand, contended, "I do not 
believe the offense of 'having clothing of another in his possession' is such an offense 
as to affect his credibility as a witness. It is not an infamous crime, not a capital 
crime." Furthermore he made the point, " It is a rule of common law that the records 
of a former trial are the proper evidence of the trial or conviction." 

Counsel for the accused, on the other hand, although he did not move to strike out 

the testimony of this witness, in his oral argument stated," Now we come to , 

the man convicted for having another man's clothes in his possession. In a civil 
court his testimony would not be admitted," and, in effect, questioned the competency 
of this witness. 

The foregoing brings into issue the following: (1) The nature of an offense, the con- 
viction of which may serve as a basis for an attempt to impeach a witness; (2) the man- 
ner in which such a conviction may be introduced in evidence; and (3) the weight to 
be given testimony of this character; that is, does evidence, if properly introduced, 
of a conviction of an offense of such a nature as to be admissible for the purpose of 
impeaching a witness attack the comoetency or merely the credibility of such witness? 

As to (1) it may be stated as the w'eight of modern authority that, "the fact that a 
witness has been convicted of crime may be brought out as bearing on his credibility, 
where the crime amounts to a felony, or is infamous in its nature, and involves moral 
turpitude. But it is usually held that a witness is not to be discredited by showing 
his conviction of a mere misdemeanor, or minor offense not involving moral turpitude, 
or infamous in its nature." (40 Cyc. 2607.) In the application of this principle the 
department has no hesitancy in stating that it does not consider that a conviction 
of a strictly military offense, such as "having clothing in lucky bag." could be intro- 
duced in evidence for the purpose of discrediting a witness: but it can not accept the 
contention of the judge advocate in this case that the offense of "having unlawful 
possession of the clothing of another" is a strictly military offense in the same category 



WITNESSES. 651 

as the example given above, but, on the contrary, considers that this latter offense 
is not essentially military in its character, and that it does involve a certain degree 
of moral turpitude. 

As to (2), the manner in which evidence of the conviction was introduced, "a con- 
viction of crime is properly proved by the record or a properly authenticated copy 
thereof, and in the absence of any controlling statute on the subject, the record is 
the only competent evidence of the conviction, and parol evidence is not competent 
for that purpose if objected to. But modern statutes very generally allow th e witness 
to be cross-examined as to conviction of crime; and, if he admits his conviction, this 
is sufficient and the production of the record is not necessary." (40 Cyc. 2640.) The 
admission of this witness, therefore, could properly be accepted by the courts as evi- 
dence of his conviction of the offense in question. 

In regard to (3), the question as to whether conviction of an infamous crime affects 
the competency or credibility of a witness, the distinction between competency and 
credibility is clearly laid down in Forms of Procedure, 1910, pages 135, 136, where 
it is stated that "at present there are few persons except idiots, the insane, intoxi- 
cated persons, very young children, and the wives of accused persons that by law 
are not competent to testify * * * it may be stated as a general rule that all 
witnesses capable of so doing are entitled to testify, and that it rests with the court 
in its capacity as a jury to decide how much weight is to be given their testimony." 

It may be seen, therefore, from a consideration of the foregoing that such credence 
as the court may have given to the admissions of this witness regarding his conviction 
of the offense in question, might operate to affect his credibility, but not his compe- 
tency as a witness. G. C. M. Rec. No. 31998; C. M. O. 16, 1916, 7-9. See in this con- 
nection Self-Incrimination, 11. 

The question of the credibility of the testimony given by a witness is a most im- 
portant one, for upon it rests the decision of the court as to the proof of the various 
allegations. When the character for veracity of a witness has been shown to be bad — 
and whether this has been done or not is a matter within the sound judgment and 
discretion of the court — his testimony is not necessarily to be wholly disregarded, 
but is to be considered in connection with the rest of the testimony and such credit 
given to it as it appears to be entitled to receive". Also when a witness has been shown 
to have testified falsely to a certain particular, the maxim falsus in uno, falsus in 
omnibus, need not always be applied, nor all his testimony disregarded, but it should 
be weighed in connection with the other testimony, especially when corroborated. 
The general manner and bearing of a witness is an important consideration in weighing 
his testimony. (Forms of Procedure, 1910, p. 140.) See also Evidence, 129. 

53. Criticized by court— The accused was on the stand as a witness in his own behalf and 

during cross-examination became dictatorial and also critical of the manner in which 
the questions were being asked him. The court "cautioned the witness that he is to 
address any remarks he may have to make to the court and not to the counsel for the 
judge advocate, and not to try to dictate in which way he shall ask the questions, 
but to answer the questions as directly as possible, and any objection to be made will 
be made to the court." G. C. M. Rec, 30485, pp. 494, 496. 

54. Cross examination— Witnesses should be cross-examined only on matter brought 

out in the examination in chief. G. C. M. Rec, 30485, p. 36. See also C. M. O. 26, 1910, 
4; 8, 1913, 5. 

55. Deck court officer— Not a competent witness. See Deck Courts, 58. 

56. Degrading questions. See Self-Incrimination, 11, 12. 

57. Disgraceful questions. See Self-Incrimination, 11, 12. 

58. Employee of Navy Department— Who attends court as a witness otherwise than as 

a witness for the Government is not entitled to draw salary during the period absent 
from work, unless such absence is charged to his annual leave. File 6036-2, Apr. 5, 
1907. 

59. Enlisted men— "Such document [summons] may properly be addressed directly to 

the man and transmitted through his commanding officer." File 26504-52, Sec Nav y , 
July 21, 1909. 

60. Examining board— Testimony before. See Naval Examining Boards, 25, 26. 

61. Excited -Weight of evidence. See Affray, 1; Evidence, 128. 

62. Exclusion from court of all persons who might be witnesses. See Court, 

126-128; Record of Proceedings, 105. 

63. Extenuation— Where the accused goes on the stand at his own request as a witness in 

extenuation of his acts, the record should contain the proper notation that he was a 
witness in extenuation. C. M. 0. 8, 1911, 4-6; 17, 1915, 2. 



652 WITNESSES, 

64. Eyewitnesses. See Words and Phrases. 

65. Facts— Witnesses should testify as to facts. CM. O. 17, 1916, 9. See also Court, 199; 

Opinion, 15-17. 

66. Fees. See Address, 3; Expert Witnesses, 3, 4. 

67. Husband and wife. See Wife. 

63. Identification— Preliminary questions. See Leading Questions, 5. 

69. Illegally sworn. See case of Commodore Barron, in which case witnesses were sworn 

by the judge advocate instead of by the president of the court. See Estoppel, 9. 

70. Introductory questions. See Leading Questions, 5. 

71. Impeachment. See Impeachment. 

72. Incompetent. See Evidence, 65. 

73. Intimidating witnesses— Offense charged under "Scandalous conduct tending to 

the destruction of good morals." G. C. M. Rec. 32161. See also G. C. M. Rec. 18904, 
p. 3 of charges and specifications. 

74. Judge advocate — As a witness. See Judge Advocate, 130-136. 

75. Judge of a civil court— As a witness. See Deck Courts, 58. 

76. Manner, bearing, and appearance— Of witnesses while testifying. See Court, 

198; Evidence, 129; Witnesses, 52. 

77. Members of courts-martial— As witnesses. See Members of Courts-Martial, 

52-56. 

78. Memory— Refreshing. See Witnesses, 95-99. 

79. Naval examining board— Unrecorded presence of witnesses. See Naval Examining 

Boards, 25. 

80. Same — Candidate as a witness. See Naval Examining Boards, 26. 

81. Naval Militia— Officer of Naval Militia called as a witness before a court-martial of 

the Regular Navy. See Naval Militia, 45, 46. 

82. Numbering of questions. See Record of Proceedings, 105. 

83. Oaths. See Oaths. 

S4. Opinions— By witnesses. See Court, 199; Opinion, 15-17; Witnesses, 65. 

85. Ordinary witnesses— Should not be examined as an expert. See Expert Wit- 

nesses, 9. 

86. Prisoners— General court-martial prisoners as witnesses before civil courts, grand 

juries, etc. See File 26276-17; 26276-33; 26276-36; 26276-93. See also General Order 
No. 121, Sept. 17, 1914, 15: Prisoners, 33, 39. 

87. Private litigation— An officer ordered to perform travel in order that he might be pres- 

ent to testify if needed in a suit to which the Government is not a party, but its 
interest in the result of the litigation is sufficiently great in the opinion of the "Secretary 
of the Navy to cause the officer to be present/is entitled to mileage for the travel 
performed. (Compt. Dec., July 2S, 1915; 173 S. & A. Memo. 3729.) File 26254-1855; 
C. M. O. 35, 1915, 10. 

88. Same— Prisoners. See General Order No. 121, Sept. 17, 1914, 15; Witnesses, 86. 

89. Same— Department will not compel an officer to furnish any testimony whatever 

for use in private litigation, the matter not being one under its official cognizance. 
File 26276-136, Sec. Navy, Apr. 17, 1916. 

90. Prosecuting witness— An accused appealed from the sentence of a deck court, one 

of the three grounds assigned for appealing being the fact that the deck-court officer 
turned prosecuting witness himself. C. M. 0. 14, 1911, 4. See also Deck Courts, 58. 

91. Questions— Should be numbered properlv. See Record of Proceedings, 104, 105. 

92. Recognizance. See Intent, 2; Words and Phrases. ■ 

93. Record of proceedings. See Record of Proceedings. 

94. Reflection. See Acquittal, 31. 

95. Refreshing memory— A witness may be allowed to refresh his memory by reference 

to a memorandum, provided it was made by him at the time the fact or transaction 
to which it refers occurred, or as soon thereafter as to afford the presumption that 
the memory of the witness was fresh at the time of making it. If the paper is not 
one made by the witness, it must appear that after inspecting it, he can speak from 
his own recollection; otherwise he can not use it. The privilege of using a memoran- 
dum does not authorize the witness to read his evidence from notes previously made. 
(Forms of Procedure, 1910, p. 141.) See Witnesses, 97. 

96. Same— A general court-martial ruled that the proceedings of a court of inquiry can 

not be introduced for the sole purpose of refreshing the memory of the judge advocate 
(who officiated as such before the court of inquiry), he offering to testify as a witness. 
The department in acting upon the case stated m part: 



WITNESSES. 653 

"It is the official duty of the judge advocate of a court of inquiry faithfully to 
record the proceedings and the testimony taken before such court, and he must attach 
his signature thereto. I am of opinion that such a record is therefore admissible, as 
would be any memorandum made by the witness at the time, for the purpose of re- 
freshing his memory, whether or not he has an independent recollection in the matter. 
This, of course, is a different thing from introducing the record in evidence." C. M. O. 
12, 1904, 3. 4. See also Courts op Inquiry, 20. 

97. Same — While a witness may refresh his memory from memoranda written by him- 

self, under certain conditions (Forms of Procedure, 1910, pp. 34-35, 139), this privilege 
of using a memorandum does not authorize the witness to read his evidence from 
notes previously made (Forms of Procedure, 1910, p. 139). C. M. O. 41, 1914, 5. 

98. Same— The court improperly allowed a witness to refresh his memory by holding 

a telephone conversation and obtaining testimony from another person, which con- 
versation the witness was then allowed to repeat in order to verify a name previously 
given as that of a person by whom some jewelry had been pawned. (See Index- 
Digest, 1914, p. 43.) C. M. O. 9, 1916, 8. 

99. Same— A mess attendant, called as a witness, was asked who the officer of the deck 

was at a certain time, and upon his answering that he did not remember, the record 
stated that " a recess of five minutes was here taken to give the witness an opportunity 
to refresh his memory." After reconvening the question was answered by the witness. 
Such a course of procedure was improper. A midshipman had just previously testi- 
fied that he was officer of the deck, and other witnesses were available, if it had at all 
been necessary to substantiate this midshipman's testimony, or the ship's log could 
have been introduced to prove the fact, without the court taking a recess in order to 
permit a mess attendant to look up the official records of the ship. C. M. 0. 15, 1910, 5. 

100. Refusing to answer a question— If the accused goes on the stand voluntarily in 

his own behalf and refuses to answer a question, the reason for his refusing should 
appear on the record and not be made to appear solely by inference. CM. O. 17, 
1910, 12, 13. 

101. Representative. See Congress, 12. 

102. Retiring board — Candidate as a witness. See Naval Examining Boards, 26. 

103. Self-incrimination. See Self-Incrimination. 

104. Single witness. See Evidence, 114. 

105. Specifications— Read to witness by judge advocate. See Charges and Specifi- 

cations, 105. 

106. Spouse. See Wife. 

107. Summoning of witnesses. See Witnesses, 59. 

Summons to persons, to appear as witnesses before summary courts-martial, under 
the command of the convening authoricy shah be transmitted through the executive 
officer or officer of the day; to other naval persons through the usual official channels; 
and to civilians, in the mode best calculated to reach them. (R-606(3).) 

108. Transportation of— Transportation of enlisted men of the Marine Corps as witnesses 

before courts-martial. File 26276-8b, Sec. Navy, June 11, 1909. 

109. Usurpation — When a witness while testifying states his opinion as to guilt or innocence 

of accused he usurps the prerogatives of the court. Sec Court, 199; Opinion, 15-17; 
Witnesses, 65. 

110. Verification of testimony. See Accused, 4; Evidence, 121-123. 

111. Warning. See Warning, 3, 5, 6, 7, 8, 9. 

112. Weight— "Where two witnesses testify with regard to the same matter and one of 

them remembers and the other merely does not remember the circumstances of the 
matter * * * the evidence of him who remembers must be accepted.'' Ct. Inq. 
Rec.,4952, p. 1801. 

113. Weight of evidence as affected by number of witnesses— The relative number of 

witnesses for the prosecution and defense is by no means decisive in general, as the 
relative weight of the evidence depends much less upon the number of the witnesses 
than upon their character, their relation to the case, and the circumstances under 
which their testimony is given. (Forms of Procedure, 1910, p. 140.) 

114. Same— In general. See Court, 19S; Drunkenness, 100; Evidence, 126, 12S, 129; 

Reasonable Doubt; Witnesses, 4, 52, 112, 113. 

115. Wife of accused. See Wife; Witnesses, 52. 

116. Youthful witnesses. See Witnesses, 52. 



654 WORDS AND PHRASES. 

WORDS AND PHRASES. 

Afortiori — "For stronger reasons." (C. M. O. 6, 1915, 15.) "With stronger reason; much 
more." (1 Bouv., 1.) C. M. O. 31, 1911, 5; 4, 1913, 56; 27, 1913, 14; 7, 1914, 10; 6, 

1915, 15; 13 J. A. G., 483; 16 J. A. G., 81; File 5252-36, J. A. G., May 5, 1910, p. 7; 
26251-1963:1, J. A. G., Aug. 17, 1910, p. 13; 5362-35, p. 9; 13 J. A. G., 483. 

Ab initio — "From the beginning." (C. M. O. 12, 1915, 5.) "From the beginning; en- 
tirely; as to all the acts done; in the inception." (1 Bouv., 2.) C. M. O. 21, 1898; 
12, 1915, 5; Court, 192. 

"Abandon ship." C. M. O. 22, 1883. 

Abscond. See Theft, 19. 

Abet—" To encourage or set another on to commit a crime. This word is always applied 
to aiding the commission of a crime. To abet another to commit a murder, is to 
command, procure, or counsel him to commit it." (1 Bouv., 51.) See Aiding and 
Abetting. 

Absente reo— "In the absence of the defendant." (C. M. O. 49, 1915, 12.) 

"Abstract or theoretical questions." C. M. O. 5, 1913, 8. 

"Academic questions." File 6427-63, p. 7. 

Accessory— " He who is not the chief actor in the perpetration of the offense, nor present 
at its performance, but is in some way concerned therein, either before or after the 
fact committed." (1 Bouv., 58.) 

Accessories — In a general court-martial sentence. See Accessories; Sentences, 3. 

Accomplice — " One who is concerned in the commission of a crime." (1 Bouv., 62.) See 
Accomplice; C. M. O. 8, 1913, 3-4. 

Accused — "One who is charged with a crime or a misdemeanor." (1 Bouv., 66.) See 
Accused. 

"Acquiescence implies consent, and consent cures error." C. M. O. 14, 1911, 5, 8; 13, 

1916, 6; Estoppel, 9. 

Act of God — Under the term "Act of God" are comprehended all misfortunes and acci- 
dents arising from inevitable necessity, which human prudence could not foresee or 
prevent. 

Act of war. See War, 28, 29. 

•"Acts of a treasonable or riotous nature." C. M. O. 14, 1910, 14. 

Ad interim— "In the meantime." (1 Bouv., 90.) File 26253-114; 22724-18, p. 5; Commis- 
sions, 1, 23, 29. 

A d litem—" For the suit." (1 Bouv., 90.) See Guardian, 1. 

Ad testificandum. See General Order No. 121, Sept. 17, 1914, 23; Words and Phrases 
(Subpoena ad testificandum). 

Ad valorem— "According to the valuation." (1 Bouv., 91.) 

"Additional ingredient." C. M. O. 23, 1910, 11; Fraudulent Enlistment, 50. 

Administration — Of government— " The management of the executive department of 
the Government. Those charged with the management of the executive department 
of the Government." (1 Bouv., 96.) 

Admissions — "Confessions or voluntary acknowledgments made by a party of the 
existence or truth of certain facts." (1 Bouv., 102.) See Admissions. 

Admissions against interest. See Admissions Against Interest. 

Admonition — "A reprimand from a judge to a person accused, on being discharged, 
warning him of the consequences of his conduct, and intimating to him that should 
he be guilty of the same fault for which he has been admonished, he will be punished 
with greater severity." (1 Bouv., 104.) See Judge Advocate, 6; Marine Examin- 
ing Boards, 2; Promotion, 8. 

Affiant — One who makes an affidavit. CM. O. 48, 1915, 1; Affidavits. 

Affidavit. See Affidavits, 4. 

Affinity — "Relationship by marriage between the husband and the blood relations of 
the wife, and between the wife and the blood relations of the husband." See Death 
Gratuity, 26. 

Affirm — "To make a solemn religious asseveration in the nature of an oath." (1 Bouv., 
112.) 

Affirmation. See Oaths, 20. 

Affray — "The fighting of two or more persons in some public place to the terror of the 
people." Differs from a riot in not bemg premeditated. Fighting in a private place 
is only an assault. (1 Bouv., 113.) C. M. O. 23, 1911, 8, 11; 26, 1914: Evidence, 128. 

Aggravation— "That which increases the enormity of a crime or the injury of a wrong." 
(1 Bouv., 121.) 

Agreement between officers— As to quarters. File 26254-2052, July, 1916. 



WORDS AND PHRASES. 655 

Aiding and abetting. See Aiding and Abetting. 

Alcohol. C. M. O. 42, 1909, 12, 13, 14; 24, 1914. 

Ale. C. M. O. 7, 1911, 10. 

Alias — "Before; at another time; otherwise. The term is sometimes used to indicate 
an assumed name." (1 Bouv., 129.) C. M. O. 49, 1910, 11; 55, 1910, 6; 28, 1910, 8; 
25, 1914, 6; 29, 1914, 4, 7; 9, 1916, 5. 

Alibi — "Presence in another place than that described." (1 Bouv., 128.) C. M. O. 21, 
1910, 15; 6, 1915, 7; Wife, 13 (p. 644). 

Alimony. G. C. M. Rec, 31509, p. 4 of charges and specifications; Debts, 1. 

Alimony pendente lite—" Alimony pendente lite is that ordered during the pendency of 
the suit." (1 Bouv. 130.) File 28478-40, J. A. G., Oct. 24, 1916. 

"All fours"— "A metaphorical expression signifying that a case agrees in all its circum- 
stances with another." (1 Bouv., 133.) C. M. O. 34, 1913. 8; File 26260-1392, p. 2. 

Allegation— "The assertion, declaration, or statement of a party of what he can prove." 
(1 Bouv., 133.) 

"All hands abandon ship." C. M. O. 22, 1883, 4. 

"All-hands evolution of coaling." C. M. O. 15, 1909. 

"American bluejacket." C. M. O. 14, 1910, 13; 7, 1911, 6, 9. 

Amicus curiae — "A friend of the court." (Index, 1915, 4.) "One who, for the assistance of 
the court, gives information of some matter of law in regard to which the court is 
doubtful or mistaken; such as a case not reported," etc. (1 Bouv., 138.) See Fili- 
pinos, 3. 

"Ancient title of admiral." 13 J. A. G., 394; Titles, 1. 

" And for other purposes of naval administration." See Oaths, 16, 30, 38, 39, 48. 

Anesthetic. C. M. 0. 10, 1915, 8. 

Animadversion — "The utterance of criticism or censure; a censorious comment or 
reflection." (Stan. Diet.) Criticism of Courts-martial, 19, 20, 35. 

Animadverts — "To pass criticism or censure; make censorious remarks." (Stan. Diet.) 
File 3558-04, 1. 

Animus — "The intention with which an act is done." (1 Bouv., 142). 

Animus furandi — "The intention to steal." (1 Bouv., 143.) 

Animus non revertendi—" The intention of not returning." (C. M. O. 31, 1915, 15.) See 
Desertion, 24, 39; Service Records, 16; C. M. O. 49, 1910, 8, 15; 21, 1910, 5; 31, 1915, 15. 

"Animus peculiar to desertion." C. M. O. 65, 1895, 2; 66,1895,2; 12,1896,2. 

Animus revertendi — "The intention of returning." (1 Bouv., 143.) 

"Annoyance and chagrin." C. M. O. 4, 1911, 2. 

Ante— "Before, in time, order or position." (Stan. Diet.) C. M. O. 26, 1911, 5, 6; File 
6769-21, p. 26; 14818-4, J. A. G., Aug. 16, 1909, p. 14; 13 J. A. G., 136; Dying Decla- 
rations, 1. 

Anti-enlistment societies. File 15183-65, See. Navy, Apr. 10, 1916. 

"Any other officer in either department" — As used in R. S., 179. See Judge Advocate 
General, 4. 

Appelate jurisdiction — "The jurisdiction which a superior court has to rehear causes 
which have been tried in inferior courts." (1 Bouv. 151.) 

Armistice. See War, 1-5. 

Arrest. See Arrest. 

Ash-pan doors. C. M. O. 37, 1915, 4. 

Asportation— "A carrying away; felonious removal of goods." See Theft, 17. 

Assault— An apparent unlawful offer to do violence to another within reach of the means 
employed. See Assault, 7-9. 

"Assembly of a judicial character." See Jurisdiction, 53. 

"Attaching no criminality." C. M. O. 10, 1911, 5. 

"Atone for his misconduct." C. M. O. 25, 1910, 2. 

"Atone for the disgrace." C. M. O. 56, 1910. 

Attorney. C. M. O. 21, 1910, 13; 51, 1914, 8. 

Attorney-at-law— " An officer in a court of justice who is employed by a party in a cause 
to manage the same for him." (1 Bouv., 192.) 

Attorney in fact— "A person to whom the authority of another, who is called the con- 
stituents by himlawfully delegated." (1 Bouv., 192.) " In ordinary terminology is 
synonymous with agent." (File 26251-12159, Sec. Navy, Oct. 7, 1916, p. 2.) 

Autresfoits acquit— A former acquittal. (File 26501-285, J. A. G., July 15, 1916.) 

Autresfoits convict— & former conviction. (File 26504-285, J. A. G., July 15, 1916.) 

Axiom — A self-evident or necessary truth. 

"Axiomatic." See Drunkenness, 84. 

50756°— 17 42 



656 WORDS AND PHRASES. 

" Bald conclusion of law." C. M. O. 4, 1914, 7. 

"Banter or joke." C. M. O. 5, 1912, 12. 

Bar— "Man at bar." C. M. O. 28, 1910, 8. 

"Barbecue." C. M. O. 16, 1911, 2. 

Bawdyhouse— " A house of ill-fame, kept for the resort and unlawful commerce of lewd 

people of both sexes." (1 Bouv., 225.) 
"Beach comber" — "An idle or vicious vagrant about wharves and beaches at seaports." 

(Stan. Diet.) See G. 0. 152, Mar. 29, 1870. 
"Beachmaster." C. M. O. 10, 1908, 2. 
"Beat it." C. M. O. 28, 1908, 2. 
"Beat with his fist." C. M. O. 53, 1910, 1. 
Bench warrant— "An order issued by or from a bench, for the attachment or arrest of a 

person. It may issue either in case of a contempt, or where an indictment has been 

found." (1 Bouv., 228.) C. M. O. 35, 1915, 8; File 26524-206, Sec. Navy, Nov. 19, 

1915; Sec. Navy 26524-74:2, Sec. Navy, July 27, 1915. 
"Best evidence" — "Best evidence" means the best evidence of which the nature of the 

case admits." (1 Bouv., 230.) 
By the best evidence is meant not necessarily the greatest quantity of evidence, 

but the most authoritative and legally satisfactory evidence of which the case is 

capable. Whenever it appears that there is a higher and better grade of evidence 

than that which is introduced, the latter is not admissible. (Fobms of Procedure, 

1910, p. 138.) 
Bill of exceptions — "A written statement of objections to the decision of a court upon a 

point of law, made by a party to the cause, and properly certified by the judge or 

court who made the decision." (1 Bouv., 236.) See Bills of Exceptions. 
Binnacle list. G. O. 140, Sept. 17, 1869. 
Blackmail. File 26251-12159; Blackmail. 
"Bluffed." C. M. O. 8, 1911, 6. 
"Blunted conscience." C. M. O. 51, 1914, 4. 
Bona fides — " Good faith, honesty, as distinguished from mala fides (bad faith). (1 Bouv., 

251.) t 

Bona fide— "In good faith." (1 Bouv., 251.) C. M. O. 29, 1914, 9; 27, 1915, 8; File 26543- 

66, p. 4; 8554-04, p. 4. 
"Bondsmen." C. M. O. 11, 1908, 4. 
Bounty— "An additional benefit conferred upon or a compensation paid to a class of 

persons." (1 Bouv., 260.) C. M. O. 6, 1915, 8. 
"Boxing matches." C. M. O. 23, 1911, 6. See also Line of Duty and Misconduct 

Construed, 7-9; Manslaughter, 13. 
Brawl. C. M. O. 23, 1882. 
Breach of trust. See Breach of Trust. 
Bread— "To deprive old officers of bread." (Brown v. U. S., 18 Ct. Cls., 542.) File 

26253-114, J. A. G., Aug. 19, 1910, p. 16. 
"Brother officers." C. M. O. 39, 1912; 35, 1914, 4; Adequate Sentences, 11. 
" Brutal or cruel" hazing. See Hazing; C. M. 0. 12, 1913, 1. • 

Buggery. See Sodomy. 
"Bugle calls." C. M. O. 4, 1911. 
Bully. See Bully; C. M. 0. 12, 1913, 2. 
" Bunk." C. M. O. 15, 1909: 16. 1910. 

Burden of proof— Shifting. C. M. 0. 42, 1909, 4; 49, 1910, 6; 30, 1910, 10; Burden of Proof, 8. 
Bystander. See C. M. O. 23, 1911, 7; 49, 1915, 12; Bystander, 1. 
" Calisthenic exercises." C. M. O. 12, 1913, 1. 
Cape Cruz — Casilda Surveying Expedition. C. M. O. 13, 1911. 
"Capital operation"— "One involving some danger to life." File 26253-98, J. A. G., 

May 17, 1910, p. 12. 
"Captious doubt." See Reasonable Doubt. 
"Carrying concealed weapons." C. M. O. 2, 1912, 9; 7, 1912; Carrying Concealed 

Weapons. 
Cashier. See Cashiered. 

" > latch-ail"— Clause of the Navy Regulations. See " Catch-all " Clause. 
Caterer of the junior officer's wine mess. C. M. O. 6, 1912. 

Civeat emptor—" Let a purchaser beware." (6 Cyc, 706.) G. C. M. Rec, 30485, p. 818. 
Chusa — "A cause, occasion, or reason." (6 Cyc, 703.) 

Causa causans— "The immediate cause." (6 Cyc, 703.) See Line of Duty and Mis- 
conduct Construed, 89. 
Causa mortis— In contemplation of approaching death. 



WORDS AND PHRASES. 657 

Cavil— "A captious or hypercritical objection; a frivolous, carping argument; also the 
raising of such objections; caviling." (Stan. Diet.) C. M. O. 29, 1914, 9. 

Cebu, P. I— Naval reservation. File 1357, J. A. G., Apr. 22, 1905; 13 J. A. G., 437. 

Censorship. File 27403-130:5. 

"Censurably negligent." C. M. O. 9, 1911, 1. 

Certified checks— "A check which has been recognized by the proper officer as a valid 
appropriation of the amount of money therein specified to the person therein named, 
and which bears upon itself the evidence of such recognition." (1 Bouv., 301.) 

Certiorari — "A common-law writ issued from a superior court directed to one of inferior 
hirisdiction commanding the latter to certifv and return to the former the record in 
the particular case." (6 Cyc, 737.) C. M. O. 2, 1912, 8; Fiie 26287-1020, p. 6; 13 
J. A. G., 124. 

Ces que trust— The beneficiary of a trust. C. M. O. 39, 1913, 8. 

"Challenge to fight a duel." C. M. O. 5, 1912, 12. 

"Chance" — Orders to "take a chance." C. M. O. 37, 1915; Orders, 8. 

Civil employee— Investigated by a board of investigation. File 26283-968, Sec. Navy, 
Dec. 16, 1915. 

Cochero. C. M. O. 36, 1912, 2. 

"Code of ethics." C. M. 0. 12, 1911, 6, 7: Code of Ethics. 

Coersion — "Constraint; compulsion; force." (1 Bouv., 345.) 

Collusion— "An agreement between two or more persons to defraud a person of his rights 
by the forms of law, or to obtain an object forbidden by law." In divorce collusion 
is "an agreement between a husband and wife that one of them will commit or appear 
to commit a breach of matrimonial duties in order that the other may obtain a 
remedy at law as for a real injurv." (1 Bouv., 352.) 

"Color of his office." C. M. O. 27, 1911, 1; 4, 1913, 42. 

"Color of right." 13 J. A. G., 467. 

"Colors on the flagstaff." C. M. O. 4, 1911, 5. 

"Combination of action." C. M. O. 10, 1911, 4. 

Comity — " Courtesy; a disposition to accommodate." (1 Bouv., 354.) 

Commercia belli — "War contracts; contracts entered into by belligerent nations to secure 
a temporary and limited peace; contracts between nations at war or their subjects." 
(7 Cyc, 493.) File 26516-47, J. A. G., May 18, 1911, p. 6; see also War, 5. 

Committee — "A guardian appointed to take charge of the person or estate of one who has 
been found to be non compos mentis." (File 8528-406, J. A. G., May 6, 1914.) See 
Government Hospital for the Insane, 2; Insanity, 9. 

Commitment papers. File 26251-11491:3, J. A. G., June 10, 1916. 

Common carrier. C. M. O. 9, 1916, 9. 

Common law— "English common law— The term 'common law' has been used in differ- 
ent senses. In one sense it signifies that particular portion of the municipal law of 
England which was formerly administered exclusively by the common-law tribunals 
and is now administered by them concurrently with, and as modified by equitable 
doctrines; and in this sense the English common law includes the lex scripta or statute 
law as well as the unwritten law or lex non scripta. Generally, however, when we 
speak of the English common law we mean the lex non scripta or unwritten law as 
defined by Blackstone — that portion of the law of England which is based not upon 
legislative enactment but upon immemorial usage and the general consent of the 
people." (8 Cyc, 367.) 

"American common law — The common law in the United States consists of the 
common or unwritten law of England as it existed in 1607, when the colonists from 
England settled in America, or in some States at a later date, in so far as that law is 
applicable to the new surroundings and conditions and has not been abrogated by 
statute; also in most States of such English statutes enacted before their immigration 
or afterwards and before the Revolution as were applicable and were adopted; and 
of some local usages originating in and coining down from colonial times." (8 Cyc. 
369.) See C. M. O. 94, 1905; 30, 1910, 7; 10, 1911, 6; 23, 1911, 7; 2, 1912, 8; 5, 1912, 7; 
7, 1J14, 5; 16, 1916, 7; Witnesses, 52. See also Common Law. 

Common-law crime. C. M. O. 23, 1911, 5. 

Common-law indictment. C. M. O. 23, 1911, 5; 8, 1913, 6. 

Common sense— " Sound, practical judgment; that degree of intelligence and reason, as 
exercised upon the relations of persons and things and the ordinary affairs of Life. 
which is possessed by the generality of mankind, and which would suffice to direct 
the conduct and actions of the individual in a manner to agree with the behavior of 



658 WORDS AND PHRASES. 

ordinary persons. 'Common sense is an important element in the administration of 
justice and perhaps an indispensable element in its successful administration.' 
(Wright v. State, 69 Ind., 163, 165; 35 Am. Rep., 212.)" (8 Cyc, 393.) 

Company fund. C. M. O. 49, 1915, 4. 

Complaining witness. C. M. O. 53, 1910, 2; 54, 1910, 2. 

Complements of ships. File 13352-407, J . A. G., Mar. 16, 1912. 

Complicity. C. M. O. 47, 1910, 5. 

Compounding a felony— "The gravamen of this offense consists in the stifling of a public 
prosecution or in some way perverting public justice; hence the bare retaking of one's 
own goods which have been stolen would not constitute the offense unless some favor 
be shown the offender, or the retaking be done with an intent to in some way aid 
him." (8 Cyc, 493.) 

"Compounding of an engine." C. M. O. 27, 1910, 2. 

Compulsion — "Constraint; objective necessary; forcible inducement to the commission 
of an act." (8 Cyc, 542.) 

"Compulsion or inevitable necessity." CM. O. 5, 1912, 11. 

Compulsory process. See Constitutional Rights of Accused, 17. 

Conclusions of law. See Conclusions of Law. 

Concert — "Committed by the accused in concert." C M. O. 10, 1911, 4. 

Concurrent jurisdiction — "Concurrent jurisdiction is that which is possessed over the 
same parties or subject matter at the same time by two or more separate tribunals." 
(2 Bouv., 57.) See Jurisdiction, 21. 

"Concurrent responsibility." C. M. O. 21, 1916, 4. 

"Condign punishment." C. M. O. 26, 1913. 

Conditions, impossible — "Are those which can not be performed in the course of nature." 
(1 Bouv., 383.) 

Conditions precedent — "Precedent conditions are those which are to be performed before 
* * * the obligation commences. * * * They are distinguished from conditions 
subsequent." (1 Bouv., 383.) "A condition which calls for the performance of some 
act or the happening of some event after the terms of the contract have been agreed, 
before the contract shall take effect." (8 Cyc, 558.) C. M. O. 27, 1898, 1; File 
26509-158:2, J. A. G., June 27, 1916. 

Conditions subsequent—" Subsequent conditions are those whose effect is not produced 
until after * * * commencement of the obligation." (1 Bouv., 383.) "A con- 
dition which follows the performance of the contract, and operates to defeat and 
annul it upon the subsequent failure of either party to complv with the conditions." 
(8 Cyc, 558.) File 26509-158:2, J. A. G., June 27, 1916. 

"Conditional sale." C. M. O. 6, 1915, 9; Deserters, 11. 

Condonation — "A pardon or forgiveness of a past wrong, fault, or deficiency which has 
occasioned a breach of some duty or obligation." (8 Cyc, 559.) C. M. O. 29, 1909; 
Condone. 

"Conning." C. M. 0. 19, 1910; 33, 1913, 2. 

Connivance — "An agreement or consent, indirectly given that something unlawful shall 
be done by another." (1 Bouv., 398.) See File 26251-12159, p. 4. 

Consanguinity — "The relation subsisting among all the different persons descending 
from the same stock or common ancestor." (1 Bouv. ,399.) See Death Gratuity, 26. 

Conscience — With reference to oaths of naval courts-martial members. C. M. O. 25, 
1916, 4. 

Conspiracy. C. M. 0. 10, 1911, 5; Joinder, Trial in, 19. 

Construction of statutes — "A distinction has been drawn between the words 'interpre- 
tation' and 'construction.' the former being held to mean the reading of a statute 
according to its letter, while the latter is defined to be the reading of a statute accord- 
ing to its spirit and intent, it being said that 'the very essence of construction is the 
extension of the meaning of a statute beyond its letter.' In practice, however, this 
distinction is not always observed, the terms frequently being used interchangeably. " 

Consuls — Descriptive lists, signed by the commanding oflicer and stating the amount of 
the reward offered for a deserter shall in foreign ports be sent to the consul of the 
United States. (R-3636(2).) File 27403-132:1, J. A. G., Nov. 6, 1916, p. 3. 

Continuance— " The postponement of the trial of a cause." (1 Bouv., 422.) See Con- 
tinuances. 

Contravene — "To come into conflict with; prevent or obstruct the operation of; viola- 
tion; transgression." (Stan. Diet.) C. M. O. 31, 1911, 7. 

Contra—" Over; against; opposite." (1 Bouv., 423.) C. M. O. 29, 1915, 5. 



WORDS AND PHRASES. 659 

Contributory negligence. C. M. O. 33, 1914, 10. 

Constitution of the United States— " Nineteen violations of the Constitution do not 

justify a twentieth." File 28687-4:1. 
Contumacy — "The refusal or neglect of a party accused to appear or answer to a charge 

preferred against him in a court of justice." (1 Bouv., 431.) 
"Actual contumacy is the refusal of a party actually before the court to obey some 

order of the court." (1 Bouv., 431.) 
Convert. C. M. O. 39, 1908; 19, 1909; 42, 1904, 4; 27, 1911; 39, 1913, 8, 12; 9, 1914, 3. 
"Conviction as a matter of policy." File 26251-12159, p. 22. 
"Convivial occasions." C. M. O. 7, 1908, 2; 9, 1908, 4. 
"Convulsion." C. M. O. 42, 1909, 13. 
Copy— "A true transcript of an original writing." (1 Bouv., 436.) See Certified 

Copies, 1, 2. 
"Copyist"— Clerk of general court-martial acting as. C. M. O. 135, 1897, 2. 
Corporal— "Bodily; relating to the body; as, corporal punishment." (1 Bouv., 443.) 
"Corporal injury." C. M. 0. 10, 1912, 6. 
Corpus delicti— "The body of the offense; the essence of the crime." (1 Bouv., 445.) 

C. M. O. 26, 1910, 10; Corpus Delicti. 
Corruption and venality. G. 0. 156, May 24, 1870. See also Congress, 11. 
Court of Admiralty— A court having jurisdiction of causes arising under the rules of 

admiralty law. 
Cowardice — "PusiUanimity; fear; misbehavior through fear in relation to some duty to 

be performed before an enemy." (1 Bouv., 474.) 
"Cowardice to fly from an enemy." C. M. O. 23, 1911, 11. 
"Cramps." C. M. 0. 12, 1908, 2. 
"Creditable records"— With reference to the pay, etc., of warrant and commissioned 

warrant officers under act of August 29, 1916. File 17789-27, J. A. G., September 21, 

1916; C. M. O. 33, 1916, 6. 
"Creditable records" — With reference to retirement under act of March 3, 1899, section 

11. 14 J. A. G., 16, May 26, 1908. 
"Crew's head." C. M. O. 9, 1908, 1. 
Criminal animus. C. M. O. 6, 1908, 5. 
Criminal code. (35 Stat., 1088.) C. M. O. 4, 1913, 40. 
Culpable. See Culpable. 

"Customs and traditions of the Navy." See Watch Officers, 3. 
Cyanosis — "A diseased condition of the circulation causing a livid, bluish color in the 

skin; blue jaundice." (Stan. Diet.) G. C. M. Rec, 30485, p. 117. 
"Damned Navy." C. M. O. 28, 1908, 3. 
"Dampers." C. M. O. 37, 1915. 4. 
"Day in court." See Day in Court. 
"Day laborers"— Officers are not. C. M. O. 28, 1914, 4. 
Dead reckoning. C. M. O. 24, 1911, 1; Dead Reckoning; Navigation. 
Debauch — "To corrupt one's manners, to make lewd, to mar or spoil; to seduce and 

vitiate a woman; * * * enticing and corrupting." (1 Bouv. 511.) See Drunk- 
enness, 16, 76. 
Declarant— " One who makes a declaration." (1 Bouv., 517.) C. M. O. 26, 1911, 4; 

Dying Declarations, 1. 
De facto — "Actually; in fact; in deed. A term used to denote a thing actually done. 

"An officer de facto is one who performs the duties of an office with apparent right, 

and under claim and color of an appointment, but without being actually qualified 

in law so to act." (1 Bouv., 500.) See C. M. O. 217, 1902, 4; 14, 1910, 17; File 5839-04; 

26509-3^-64:1, J. A. G., Apr. 25, 1910, p. 4; Fraudulent Enlistment, 22; Honorable 

Discharge, 3. 
Degeneracy. C. M. O. 24, 1914, 18. 
Dejure—" Rightfully; of right; lawfully; by legal title. Contrasted with de facto (which 

see)." (1 Bouv., 501.) C. M. O. 217, 1902, 4; File 26509-^-64:1. J. A. G., Apr. 25, 

1910, p. 4; File 26260-1244, J. A. G., Apr. 14, 1911, p. 2; 26254-1930. 
"Delirious." C. M. O. 7, 1911, 15. 
Demurrer— "In pleading, a declaration that the party demurring will go no further, 

because the other has not shown sufficient matter against him." (13 Cyc, 784.) 
De novo— " Anew; afresh." (1 Bouv., 502.) C. M. O. 215, 1902, 2; 217, 1902, 4: 16. 1911, 3. 

File 26260-1392, J. A. G., June 29, 1911; 3468-04, p. 10; 13 J. A. G., 324, June 11, 1904. 
"Defensive sea areas." File 24514-39:10. 
"Dependent relative." See Death Gratuity, 14, 26. 



facts 



660 WORDS AND PHRASES. 

Deponent — "One who gives information, on oath or affirmation, respecting some 
known to him * * *; he who makes a deposition." (1 Bouv., 546.) 

Deposition. See Depositions. 

"Depravity of heart." C. M. O. 51, 1914, 4. 

Depredation— "A plundering; a laying waste." (Stan. Diet.) C. M. O. 52, 1910, 1. 

Descriptive hook. C. M. O. 141, 1897. 

"Desertion in the execution of a conspiracy." C. M. 0. 10, 1911, 5. 

Dictum— " An opinion expressed by a court, but which, not being necessarily involved 
in the case, lacks the force of an adjudication." (1 Bouv., 567.) 

"Dilatoriness." C. M. O. 3, 1912, 3. 

Dipsomania — "A mental disease characterized by an uncontrollable desire for intoxi- 
cating drinks. An irresistible impulse to indulge in intoxication, either by alcohol 
or other drugs." (1 Bouv., 572.) C. M. O. 24, 1914, 18. 

Discipline — " Such persistent action on the part of a court is an extremely bad precedent 
and would tend to undermine the discipline on the ship." C. M. O. 5, 1912, 5. See 
also Discipline. 

Discontinuance. C. M. 0. 42, 1914, 60. See also Nolle Prosequi. 

" Discouraging and disheartening." C. M. O. 4, 1911, 3. 

"Discredit upon the naval service." C. M. O. 26, 1914. 

"Disgrace and humiliation" upon the naval service. C. M. O. 20, 1910. 

"Dissipation." See Drunkenness, 46, 76, 77. 

"Ditty-box." C. M. 0. 12, 1911, 6. 

"Dockery Act"— (July 31, 1894, 28 Stat., 205). See Retired Officers, 38. 

"Dope"— And narcotic drugs. Pile 13673-3882, Sec. Navy, Sept. 26, 1916. See also 
Gouging. 

"Double amenability." 13 J. A. G., 125. 

"Drags the good name of the naval service in the dust in the newspapers." C. M. O. 
5, 1913, 4. 

"Drug." C. M. O. 42, 1909, 13. 

"Drunken frenzy." C. M. O. 37, 1912, 2. 

"Dry Tortugas." 13 J. A. G., 371. 

Dubitancy — "Uncertainty; hesitancy; doubt." (Stan. Diet.) 

Duces tecum — "You bring with you." (14 Cyc, 1107.) 

Due process of law — " 'Due process of law' in each particular case means such an exertion 
of the powers of government as the settled maxims of the law permit and sanction, 
and under such safeguards for the protection of individual rights as those maxims 
prescribe for the class of cases to which the one in question belongs." (8 Cyc. 1080- 
1081.) "Law in its regular course of administration throughs courts of justice." 
(8 Cyc. 1080.) See Debts, 18; Due Process of Law; Naval Examining Boards, 10. 

Dueling — "The fighting of two persons, one against the other, at an appointed time and 
place, upon a precedent quarrel. It differs from an affray in this, that the latter 
occurs on a sudden quarrel, while the former is always the result of design. (1 Bouv., 
624.) 

" Dueling is the act of fighting with deadly weapons between two persons in pursuance of 
a previous agreement. (14 Cyc. 1112.) See Duels. 

"Dummy" or " Figurehead." C. M. O. 23, 1913, 13. 

Duress— "Personal restraint, or fear of personal injury or imprisonment." (1 Bouv., 626.) 

"Dysentery." C. M. O. 24, 1914, 21. 

Ejusdem generis. See Ejusdem Generis. 

"Elementary." C. M. O. 9, 1911, 2. 

Embezzlement — Embezzlement of private money by an enlisted man. G. C. M. Rea, 
32006. 

"Emolument." C. M. O. 27, 1913, 8. 

" Empty honor." File 26280-63, p. 5 

" Emulation of his juniors and praise from his seniors." CM. O. 28, 1914, 5. 

"Enervated by stimulants." C. M. O. 30, 1912, 3. 

Epsom salts. C. M. O. 6, 1915, 12. 

"Equipage." Pile 24482-34, J. A. G., May 1, 1911, p. 13. 

"Equipment"— Defined. File 24482-34, J. A. G., May 1, 1911, p. 10. 

"Error of judgment." G. O. 58, June 20, 1865; C. M. O. 23, 1916, 1; 13 J. A 100, Sept. 
22, 1903. 

Estop. 15 J. A. G., 100. See also Estoppel. 

"Estopped." See Estoppel. 

Estoppel— Silence— " Estoppel by silence." File 13673-1442, J. A. G., Nov. 22, 1911, p. 10. 



WORDS AND PHRASES. 661 

Same— "In the broad sense of the term 'estoppel' is a bar which precludes a person from 
denying the truth of a fact which has in contemplation of law become settled by the 
acts and proceedings of judicial or legislative officers, or by the act of the party him- 
self, either by conventional writing or by representations, express or implied, in 
pais." (16 Cyc, 679.) 

Et al.— "And another" or "and others." (16 Cyc, 815.) File 3031-57, J. A. G., June 25, 
1908, p. 2. 

Et cetera— "And others; and other things." (1 Bouv., 696.) C. M. O. 55, 1897. 2; De- 
sertion, 24. 

Et seq.— "An abbrevation for Et sequentia, q. v. (16 Cyc, 817.) 13 J. A. G., 324; Wife, 11; 
Willfully and Maliciously, 2. 

Et sequentia— "And the following." (16 Cyc, 817.) 

"Evade the course of justice." C. M. O. 7, 1911, 12. 

"Every Saturday after 12 o'clock noon." 13 J. A. G., 206. 

"Evasive, intentionally misleading and deceptive replies." C. M. O. 9, 1909. 

"Evil intent or moral terpitude." C. M. O. 4, 1913, 57. 

"Evil mind." C. M. O. 23, 1911, 5. 

Ex contractu— "'From contract." (1 Bouv., 708.) 

Ex delicto— Actions which arise in consequence of a crime, misdemeanor or tort. (1 
Bouv., 709.) 

Ex gr. File 26543-66, p. 5. 

Ex gratia—" Of favor; of grace." (1 Bouv. , 709.) 

Ex mero motu—"Oi his own mere motion." (C. M. O. 19, 1915, 4.) "Of mere motion. 
* * * To prevent injustice, the courts will, ex mero motu, make rules and orders 
which the parties would not strictly be entitled to ask for." (1 Bouv., 709.) A 
naval court-martial under certain conditions may, ex mero motu, exclude certain 
evidence. C. M. O. 31, 1911, 6; Evidence, 82. 

Ex nessitate rei— "From the necessity of the case." (Stand. Diet.) File 26254-1936, 
J. A. G., Jan. 29, 1915, p. 7. 

Ex parte— ■" Of the one part. * * * 'Ex parte 7 in the heading of a reported case sig- 
nifies that the name following is that of the party upon whose application the case is 
heard. The term 'ex parte' implies an examination inj the presence of one of the 
parties and the absence of the other." (1 Bouv., 709.) C. M. O. 47, 1910, 9; 49,1910, 
10; 21, 1910, 13; 2,1912,7; 10,1913,6; 4,1914,5; 51,1914,2; 48,1915,2; File 1009-94. 

Ex post facto law — "An ex post facto law is one which imposes a punishment for an act 
which was not punishable when it was committed, imposes additional punishment, 
or changes the rules of evidence, by which less or different testimony is sufficient to 
convict. (8 Cyc, 1027.) 

Ex proprio vigore— "By its own force." (1 Bouv., 711.) File 27231-77, See. Navy, Sept. 
19, 1916; 27231-77:1, .T. A. G., Oct. 18, 1916. 

Ex rel. and ex relatione— "At the information of: by the relation. " Ex ret. is an abbrevi- 
ation. (1 Bouv., 711.) 

Ex vi termini—" From, or by the force of the term." (19 Cyc. , 105.) File' 6769-21, p. 38. 

"Exchange for cash." C. M. O. 11, 1908, 2. 

Exclusive jurisdiction— "Is that which gives to one tribunal sole power to try the cause." 
(2 Bouv., 57.) 

Expatriation— " The voluntary act of abandoning one's country and becoming the citizen 
or subject of another." (1 Bouv., 736.) 

Expressio unius est exclusio alterius — "The expression of one thing is the exclusion of 
another." (2Bouv.,353.) C. M. O., 14, 1911,6; File 3980-375:17, p. 11; 27213, J. A. G., 
Apr. 24, 1909, p. 4; 15 J. A. G., 457, Oct. 26, 1910. See also Statutory Construction 
and Interpretation, 37. 

Extenuation — "That which renders a crime or tort less heinous than it would be without 
it. It is opposed to aggravation. In general, extenuating circumstances go in miti- 
gation of punishment in criminal cases." (1 Bouv., 742.) 

Exterritoriality— " This term {exterritoriality is used by French jurists to signifv the 
immunity of certain persons, who, although in the state are not amenable to itslaws; 
foreign sovereigns, ambassadors, ministers plenipotentiary, and ministers from a 
foreign power, are of this class." (1 Bouv., 743.) 

"Exterritoriality, in this as in every other case, is a fiction only, for diplomatic 
envoys are in reality not without, but within, the territories of the receiving States." 
It is nevertheless a valuable term, "because it demonstrates clearly the feet thai 
envoys must in most points be treated as though they were not within the territory 
of the receiving States." ( 1 Oppenheim, pp. 460-461!) 



662 WORDS AND PHRASES. 

The position of men-of-war in foreign waters is characterized by the fact that they 
are called ' floating' portions of the flag State. For at the present time a customary 
rule of International Law is universally recognized that the owner State of the waters 
into which foreign men-of-war enter must treat them in every point as though they 
were floating portions of their flag State." (1 Oppenheim, pp. 506-507.) 

" The extraterritorial character of a naval vessel of one nation in the ports or waters 
of another is universally recognized and acknowledged, and, therefore, a crime com- 
mitted on board of such vessel falls under the jurisdiction of the vessel's countrv." 
File 27403-132:1, J. A. G., Nov. 6, 1916, p. 6. File 3973-136:2, J. A. G., Feb 26, 1916. 

Extradition— " The surrender by one sovereign State to another, on its demand, of 
persons charged with the commission of crime within its jurisdiction, that they may 
be dealt with according to its laws." (1 Bouv., 744.) 

"Extradition is the delivery of a prosecuted individual to the State on whose terri- 
tory he has c ommi tted a crime by the State on whose territory the criminal is for the 
time staying." (1 Oppenheim, p. 403, par. 327.) 

"By extradition is meant the delivery, to accredited authorities, of criminal fugi- 
tives or persons accused of crime committed in one country, upon the request of the 
government of the country in which the crime was committed, by the government 
of the country in which they have sought refuge." (Stockton, p. 189.) 

Extrajudicial— " That which does not belong to the judge or his jurisdiction, notwith- 
standing which he takes cognizance of it. Extrajudicial judgments and acts are 
absolutely void." (1 Bouv., 747.) 

Extrajudicial declarations. C. M. O. 26, 1911, 5. 

Extrajudicial statements. See Dying Declarations, 1 (p. 202, line 13). 

Eztre mis— "When a person is sick bevond the hope of recovery and near death he is 
s&id.to'bQin extremis." (1 Bouv., 747.) C. M. O. 26, 1911, 3, 4. 

Eyewitness — "One who saw the act or fact to which he testifies. "When an eyewitness 
testifies, and is a man of intelligence and integrity much reliance must be placed on 
his testimony; for he has the means of making known the truth." (1 Bouv., 747.) 
C. M. O. 12, 1911, 7; 42, 1915, 8; 48, 1915; 26, 1911, 4; 24, 1914. 20: 42, 1915. 8. 

Facsimile. 16 J. A. G., 165. 

" Fails "—Defined with reference to refusal to pay debts. File 26262-1626, J. A. G., Dec. 
28, 1912. 

"Fair trial." See Evidence, 13; Trials, 10; 13 J. A. G., 323, June 11, 1904. 

Falsus in uno, falsus in omnibus— " False in one thing, false in everything." See Wit- 
nesses, 52. 

"Familiar truths." C. M. O. 1, 1882, 3. 

Fauces tense — "Jaws of the land." "Projecting headlands or promontories, including arms 
of the sea. Such arms of the sea are said to be inclosed within the fauces terrse, in con- 
tradistinction to the open sea." (1 Bouv. 763.) 14 J. A. G. 190, Aug. 4, 1909. 

Favoritism. See Criticism of Courts-martial, 35; G. O. 224, March 23, 1877. 

"Febiger Board." See Precedence, 12. 

"Feigning." C. M. 0. 117, 1902, 9. 

"Feint." C. M. O. 8, 1911, 6. 

Fiduciary— "As a noun, a person holding the character of a trustee. As an adjective, 
the nature of a trust; having the characteristics of a trust; analogous to a trust; relating 
to or founded upon a trust; a confidence." (19 Cyc. 526). 

"Fiduciary responsibilities." C. M. O. 48, 1904, 1. 

" Field and track meet." C. M. O. 16, 1911. 

" Field duties"— The main part of a marine officers' duties are in the field, or "field duties." 
File 28687-14, Sec. Navy, Jan., 1917. 

"Figurehead or dummy." C. M. O. 23, 1913, 13. 

Fingerprints. C. M. O. 37, 1909, 5; G. C. M. Rec, 28488, pp. 6-16; 29305; Finger 
Prints. 

"Firine-pin lock at 'safe.'" C. M. O. 33, 1914. 11. 

" First blush." C. M. O. 37, 1915, 7; Orders, 39. 

"Flimsy technicalities." C. M. O. 16, 1911, 3. 

" Forcibly "—Defined and discussed. G. C. M. Rec. 21315. 

" Foretop." C. M. O. 37, 1912. 

Found property. C. M. O. 42, 1909, 4. 

" Frame up. " File 26251-10496. 

"Freedom of speech." File 26251-12159, pp. 11, 17; Officers, 89. 

"Freeze." C. M. O. 41, 1915, 6. 

"Frivolous" objections of judge advocate. C. M. 0.17, 1910, 11. 



WORDS AND PHRASES. 663 

"F the United States Navy." See Sedition, 1. 

"Fugitive from justice" — "One who, having committed a crime, flees from the juris- 
diction within which it was committed, to escape justice." (1 Bouv., 857.) 

"Funds." C. M O. 4, 1913, 39. 

Gauge glasses. C. M. O. 37, 1915, 4. 

General issue — "A plea which denies or traverses at once the whole indictment or declara- 
tion, without offering any special matter to evade it." (1 Bouv., 877.) 

General mess. C. M. O. 23, 1913, 3. 

Generalia specialibus non derogant—" Things general do not derogate from things special." 
(2 Bouv., 354.) See Statutoby Construction and Interpretation, 108. 

"Getting underway." C. M. O. 9, 1913. 

Gist — "The essential ground or object of the action in point of law, without which there 
would be no cause of action." (1 Bouv., 884.) C. M. O. 12, 1911, 4. 

"Gist of the offense." C. M. O. 14, 1910, 11; 10, 1911, 4; 10, 1912, 4; 17, 1916, 5, 7. 

"Good name of naval service." C. M. O. 7, 1912, 3; 5, 1913, 4. 

Gouging — "The offense in both instances was substantially what is termed 'gouging.'" 
13 J. A. G., 458. See also Blotter; Cheating; Gouging; Midshipmen, 22; Officers, 
13. 

Graft. See Graft. 

Grand jury. See Grand Jury. 

Gravamen— The grievance complained of; the substantial cause of the action. The part 
of a charge which weighs most heavily against the accused. (1 Bouv., 902.) C. M. 
O. 17, 1910, 4; 21, 1910, 8; 23, 1910, 12; 7, 1912, 2; 8, 1912, 3; 20, 1912, 4; 4, 1914, 7; 33, 1914, 
10; 17, 1916, 5. 

"Gross or culpable negligence." C. M. O. 33, 1914, 10. 

Guarantee— "Written guarantee." 16 J. A. G., 19, May 22, 1908. 

Guaranty— In writing. C. M. O. 41, 1915, 6. 

Guardian ad litem—" A guardian appointed to represent the ward in legal proceedings 
to which he is a party defendant." (1 Bouv., 914.) File 26251-6020, Sec. Navy, 
July 7, 1913. 

"Guilty knowledge." C. M. O. 129, 1898, 6; File 2651^49, p. 5. 

Habeas corpus— " That you have the body." "A writ directed to the person detaining 
another and commanding him to produce the body of the prisoner at a certain time 
and place, with the day and cause of his caption and detention, to do, submit to, and 
receive whatsoever the court or judge awarding the writ shall consider in that behalf." 
(1 Bouv., 917.) C. M. O. 23, 1910, 11; 2, 1912, 5, 8; 51, 1914, 2; G. 0. 121; File 26504-102, 
J. A. G., Mar. 1, 1910, p. 1. 

"Hammock of an enlisted man." C. M. O. 3, 1909. 

"Haphazard method of piloting." C. M. O. 9, 1911, 2. 

"Hauling fires." C. M. O. 37, 1915. 

Head— "Crew's head." C. M. O. 9, 1908, 1. 

"Heat of passion." C. M. O. 12, 1911, 6; 23, 1911, 4. 

"Higher evidence." C. M. O. 47, 1910, 7; 49, 1910, 10. 

"His Britannic Majesty's Navy." C. M. O. 14, 1910. See also Sedition, 1. 

"Hold-on" orders. C. M. O. 37, 1915, 9. 

"Honor of his country." See Watch Officers, 2. 

"Horse stealing." C. M. O. 2, 1912, 8. 

"Horseplay." See Line of Duty and Misconduct Construed, 71. 

"Hour of sailing." C. M. O. 51, 1910, 2. 

"Housebreaking." See Witnesses, 52. 

Humanitarianism. C. M. O. 16, 1916, 10. 

"Hunger strike"— By a naval prisoner. File 26251-314:1, Sec. Navy, Oct. 9, 1916. 

Hypothecation— The act of pledging personal property as collateral security. A lien 
given by contract by a debtor to his creditor on movable property as security for a 
debt, but without passing possession of the property hypothecated. C. M. *0. 49, 

Hypothesis. C. M. O. 5, 1913, 2; Drunkenness, 73; Reasonable Doubt, l. 

i. e. — An abbreviation of id est, which means "that; is " ''I Bouv., 97?.) 

lb.— "The same." Abbrevation for ibidem or idem. (1 Bouv., 28, 973.) C. M. O. 23, 

1911, 5, 7, 8, 10; 5, 1912, 11; 10, 1912, 6; File 9736-18, J. A. G., June 25, 1910, p. 6; 16 J. 

A. G., 88. 
Ibid— "The same." C. M. O. 10, 1911, 5; 2, 1912, 7; File 26287-1020, p. 5. 
Ibidem—" The same. The same book or place. The same subject." (1 Bouv., 973.) 



664 WORDS AND PHRASES. 

Id. — "The same." Abbreviation for ibidem or idem. (1 Bouv., 28, 973.) C. M. O. 5, 

1912, 13; 34, 1913, 7; File 26253-98, J. A. G., May 17, 1910, p. 12; 26260-1392, p. 32; 16, 

J. A. G., 112. 
Id est— "That is. Commonly abbreviated i. e." (1 Bouv., 973.) 
Idem.— "The same." (1 Bouv., 28, 973.) C. M. O. 132, 1901. 
Idiosyncrasy. C. M. O. 10, 1915, 8. 
"Ignorance of law." C. M. O. 10, 1911, 7; Court, 87; Desertion, 110; Fraudulent 

Enlistment, 23; Ignorance of Law. 
Ignorantia juris non excusat—" Ignorance of the law is no excuse." (2 Bouv., 355.) 
"Imaginary or abstract questions." C. M. O. 5, 1913, 8. 
"Impeachment of a mayor." File 20392-612, J. A. G., Aug. 30, 1916. 
"Impotent conclusion." C. M. O. 3, 1884. See also Criticism of Courts-Martial, 21. 
"Impracticability of reconvening the court." C. M. O. 12, 1911, 8. 
"In charge" and "In command." File 5254-03, J. A. G., June 20, 1903. 
In extenso— "Fully; at length." File 22724-16:1, J. A. G., Apr. 24, 1911, p. 3. 
In extremis — "In extremity; in the last extremity; in the last illness." (22 Cyc, 500.) 

C. M. O. 26, 1911, 3, 4. 
Infuturo — "At a future time." (1 Bouv., 1000.) 
In pais— "In the country as distinguished from in court; out of court or without judicial 

process; by deed or not of record." (22 Cyc, 1098.) See Words and Phrases 

(Estoppel). 
In pari delicti— "In equal fault; equal in guilt." (1 Bouv., 1002.) 16 J. A. G., 73; File 

26251-5447, J. A. G., Sec. 8, 1911, p. 4. 
In pari materia— "TJ-pon the same matter or subject. Statutes in pari materia are to be 

construed together. (1 Bouv., 1003.) Where the subject of a prior act is identical 

with and not merely similar to the law under consideration, the two acts are said 

to be in pari materia and should be construed together unless the language of the 

act to be construed is plain and free from all uncertainty. (Barnes v. Phila., etc., 

It. Co., 17 Wall., 302.) File 26251-5447, J. A. G., Dec. 8, 1911, p. 4; 16 J. A. G., 72, 73, 112; 

File 26254-50, p. 2. 
In re— "In the matter; as, in re A. B., in the matter of A. B. In the heading of legal 

reports these words are used more especially to designate proceedings in bankruptcy 

or insolvency, or the winding up of estates or companies." See C. M. O. 2, 1912, 7, 8, 9; 

5. 1912, 8; 10, 1912, 9. 
In toio — "In the whole; wholly; completely; as, the award is void in toto." (1 Bouv., 

1004.) C. M. O. 14, 1913, 4; 37, 1915. 
"Inclining experiment." C. M. O. 32, 1909. 
"Inconceivable stupidity." C. M. O. 10, 1908, 4. 

"Indefiniteness and insufficiency" of evidence. C. M. O. 212, 1902, 1; 28, 1904, 3. 
Indictment. C. M. 0. 10, 1911, 4; 23,1911,5; 13,1916,5. 
Inebriety C. M. 0. 12, 1915, 9. 
"Inevitable accident." See Collision, 12. 
^'Inevitable necessity." C. M. O. 5, 1912, 11. 

"Informal contract." File 26251-12159, Sec. Navy, Oct. 7, 1916, p. 1. 
Infra— u Below, under, beneath, underneath." (Index, 1915, 27.) File 3468-04, p. 2; 

24482-34, J. A. G., May 1, 1911, p. 20; File 3468-04, p. 2. 
"Ingenius analysis." File 8171-03. 
"Ingenius attorneys." C. M. O. 22, 1916, 7. 

"Ingredient of the offense." C. M. 0. 10, 1911, 5; 19, 1912, 7; 25, 1914, 4. 
"Initial point of departure." C. M. O. 29, 1909, 2. 
"Insulting language." C. M. O. 7, 1911, 6; 23, 1911, 6. 
Inter alia— "Among other things" (C. M. O. 19, 1915, 2). C. M. O. 12, 1897, 2; 86, 1897; 

153, 1897, 3; 29, 1902; 49, 1910, 11; 21, 1910, 7; 12, 1911, 3, 4; 16, 1913, 4; 22, 1913, 6; 

34, 1913, 8; 4, 1914, 9; 7, 1914, 9; 19, 1915, 2; 31, 1915, 14; 49, 1915, 17; 9, 1916, 5; File 

26504-102, J. A. G., Mar. 1, 1910, p. 1; 26260-1392, p. 37. 
Intercranial hemorrhage. See Line of Duty and Misconduct Construed, 9. 
Interim— "In the meantime; meanwhile." (1 Bouv., 1095.) 
Interlocutory — "Something which is done between the commencement and the end of 

* * * action which decides some point or matter, which, however, is not a final 

decision of the matter in issue." (1 Bouv., 1096.) 
Internment. File 27715-82, J. A. G., Feb. 14, 1916. 
Interpretation— " The discovery and representation of the true meaning of any signs 

used to convey ideas." (1 Bouv., 1105.) 
Interpretation of statutes. See Words and Phrases (Construction of statutes). 



WORDS AND PHRASES. 665 

Intra vires — "An act is said to be intra vires (within the power) of a person or corporation 

when it is within the scope of his or its powers or authority. It is the opposite of 

ultra vires." (1 Bouv., 1118.) 
"Invited guests." C. M. O. 2, 1911; 6, 1914. 
Ipso facto — "By the fact itself; by the very act itself; by the mere fact." (23 Cyc, 353.) 

C. M. O. 1, 1913, 6; 8, 1913, 4; File 26252-62, p. 3; 3980-629, p. 2. 
Ipso jure— "By the operation of law. By mere law." (1 Bouv., 1120.) File 26280-61, 

p. 5; 26521-148, J. A. G., Aug. 29, 1916, p. 5; C. M. 0. 1, 1913, 6. 
< ' Ironclad . " G . . 58, June 20, 1865. 
" Irreconcilable chaos." C. M. . 29, 1915, 8. 
Ita lex scripta est— 11 The law is so written." File 3980-575:17, p. 13. 
Jacob's ladders. C. M. O. 29, 1890, 3. 
"Judicial approval." C. M. O. 23, 1911, 5. 
Judicial confession. File 26251-12159, p. 11. 
Judicial notice — "A term used to express the doctrine of the acceptance by a court for the 

purposes of the case of the truth of certain notorious facts without requiring proof." 

(2 Bouv., 39.) See Judicial Notice. 
"Judicial oath." C. M. 0. 14, 1911, 5. 

"Judicial question." C. M. O. 31, 1915, 16; "Judicial question." 
"Junior officers' wine mess." C. M. O. 6, 1912; File 26260-1392, p. 14. 
Junks, Chinese. C. M. O. 4, 1914. 
"Junk dealers." C. M. O. 34, 1909; 35, 1909. 
"Keep-going" orders. C. M. O. 37, 1915, 8. 
"Kick." C. M. O. 41, 1915, 9. 

"Kicked and abused" a seaman. See Screening an Offender. 
Kleptomania— Insanity in the form of an irresistible propensity to steal. A form of 

insanity which is said to manifest itself by a propensity to acts of theft. (2 Bouv., 93.) 
Kleptomaniac. File 26251-9280:40, p. 3. 
Knowingly. C. M. O. 12, 1911, 5; 17, 1916, 8. 
"Landing force." C. M. O. 33, 1908, 1. 
"Landing party." C. M. O. 3, 1916, 8. 
Larceny—" Larceny is the taking and carrying away of the mere personal goods of another 

with intent to steal the goods." (25 Cyc, 10.) 
"In some jurisdictions offenses usually styled as larcenies are denominated in the 

statutory definitions as thefts or as stealings." (25 Cyc, 12.) C. M. O. 42, 1909, 10; 

8, 1911, 5; Theft; Larceny; Witnesses, 52. 
Lasciviousness— Lascivious desires or conduct; lustfulness; wantonness; lewdness. That 

form of immorality which has reference to sexual impurity. Lasciviousness and 

lewdness are generally treated as interchangeable if not synonymous terms. (2 Bouv., 

137.) 
Law — "The law is not a metaphysical or theoretical science." C. M. O. 24, 1914, 11. 
" Law forces no one to do vain or useless things." File 13673-1442, J. A. G., Nov. 22, 1911, 

p. 17. 
"Law does nothing and commands nothing in vain." File 13673-1442, J. A. G., Nov. 

22, 1911, p. 17. 
"Laxness of discipline." C. M. O. 4, 1911, 2, 5. 
"Layman." C. M. O. 35, 1914, 5. 
"Lead droppings." C. M. O. 41, 1915, 4. 
"Legal conclusion." C. M. O. 31, 1915, 8. 
"Legal excuse." C. M. O. 5, 1912, 12, 13. 
"Legal involvement." C. M. O. 7, 1911, 15. 
"Legally accurate." C. M. O. 10, 1911, 5. 
"Letters of reproof"— " Forwarded through the usual military channels and placed upon 

their respective records would not be made public." File 10094-03, J. A. G., Dec. 

12, 1903, p. 1. 
Lex loci— "The law of the place." (2 Bouv., 199.) 
Lex ncminem cogit ad vana scu inutilia pcragcnda— The law forces no one to do vain or 

useless things. (2 Bouv., 361.) File 13073-1442, J. A. G., Nov. 22, 1911, p. 17. 
Lex nil facit frustra, nil jubet frustra — The law does nothing and commands nothing in 

vain. (2 Bouv., 361.) File 13673-1442, J. A. G., Nov. 22, 1911, p. 17. 
Lex non scripta— "The unwritten or common law, which included general and particular 

customs, and particular local laws." (2 Bouv., 204.) See "Words and Phrases 

(Common Law). 
Lex scripta—" Statute law." See Words and Phrases (Common Law). 
Ley defuga—" The law of flight." (Ct. Inq. Rec, 6029.) 



666 WORDS AND PHRASES. 

Limited jurisdiction— "Limited jurisdiction (called, also, special and inferior) is that 

which extends only to certain specified causes." (2 Bouv., 57.) 
Line of demarcation. 14 J. A. G. 111J. 

Locus criminis — "The locality or place of a crime." (2 Bouv., 274.) 

Locus penitentiae — "A place of repentance." The opportunity of withdrawing from a 
projected contract before the parties are finally bound; or of abandoning the intention 
of committing a crime before it has been completed. (2 Bouv., 274.) File 26251- 
2833, J. A. G., Mar. 31, 1910, p. 2; Commissions, 43. 
"Lover's Lane"— Naval Academy. File 10316-04, J. A. G., Jan. 12, 1905, p. 1. 
"Low-pressure piston." C. M. O. 27, 1910. 
"Lucky bag." C. M. 0. 16, 1916, 8; Witnesses, 52. 
Luffed. C. M. O. 43, 1883, 3. 
"Magnetic." C. M. O. 30, 1909. 
"Main feed tank." C. M. O. 34, 1908, 1. 
"Major operation"— "An important and serious operation (Gould)." File 26253-98. 

J. A. G., May 17, 1910, p. 12. 
"Make good" — Time lost on account of sickness or disease, etc. File 7657-394:1, Sec. 

Navy, Sept. 20, 1916. 
Mala fides — " Bad faith. It is opposed to bona fides, good faith." (1 Bouv., 251; 2 Bouv., 

294.) 
Mala in se — "Acts morally wrong; offenses against conscience." (2 Bouv., 294.) 
Mala prohibita — "Those things which are prohibited by law, and therefore unlawful." 

(2 Bouv., 294.) C. M. O. 4, 1913, 8, 21, 44; 33, 1914, 9; Embezzlement, 15. 
"Malevolent and vindictive spirit"— Charges made because of. G. O. 52, Apr. 15, 1865. 
"Malice aforethought." C. M. O. 12, 1911, 7; 23, 1911, 5. 
"Malignant spirit, a malignant intention to produce a particular evil." C. M. O. 10, 

1912, 7. 
Malum in se — "Evil in itself. A crime by reason of its inherent nature. * * * An 
offense malum in se is one which is naturally evil, as murder, theft, and the like; 
offenses at common law are generally mala in se. An offense malum prohibitum, on 
the contrary, is not naturally an evil, but becomes so in consequence of its being for- 
bidden, as playing at games which, being innocent before, have become unlawful 
in conseouence of being forbidden." (2 Bouv., 299.) C. M. O. 21, 1910, 9; 23, 1911, 7; 
33, 1914, 9; 16 J. A. G., 155. 
Malum prohibitum. See Words and Phrases (Mala prohibita and Malum in se). 

C. M. O. 21, 1910, 9; 23, 1911, 7; 33, 1914, 9; 16 J. A. G., 155. 
Mandamus — "Mandamus is an action or judicial proceeding of a civil nature, extraor- 
dinary in the sense that it can be maintained only when there is no other adequate 
remedy, prerogative in its character to the extent that the issue of both the alternative 
and the peremptory or final command is discretionary to enforce onl}'- clear legal 
rights, and to compel courts to take jurisdiction or proceed in the exercise of their 
jurisdiction, or to compel corporations, public and private, and public boards, com- 
missions, or officers, to exercise their jurisdiction or discretion and to perform minis- 
terial duties, which duties result from an office, trust, or station, and are clearly and 
peremptorily enjoined by law as absolute and official." (26 Cyc. 139.) 15 J. A. G., 
100. See also Legal Liability, 3. 
Marine league — "A measure equal to the twentieth part of a degree of latitude." (2 
Bouv., 313). See Target Practice. 1. 

"Since at the end of the eighteenth century the range of artillery was about three 
miles, or one marine league, that distance became generally recognized as the breadth 
of the marine belt." (1 Oppenheim, 250.) 
"Marine Officers' School." C. M. O. 22, 1909; 16, 1910. 
"Marking time." C. M. O. 42, 1915, 12. 
"Mast." C. M. O. 86, 1898, 1; 31, 1911, 6. 

Mayhem— "The act of unlawfully and violently depriving another of the use of such of 
his members as may render him less able in fighting, either to defend himself or annoy 
his adversary." (2 Bouv., 384.) C. M. O. 22, 1916, 2. 

"Mayhem at common law is defined as the violently depriving another of the use 
of such of his members as may render him less able in fighting to defend himself or 
to annoy his adversary." (26 Cyc. 1595.) 

"Glanville defines mayhem as 'the breaking of anv bone or injuring the head by 
wounding or abrasion.' Foster v. People, 50 N. Y., 598, 605, 1 Com. Cr., 50S." 
(26 Cyc. 1595.) 

"Maim and mavhem are equivalent terms at common law and mean the same 
thing. State v. Johnson, 58 Ohio St. 417, 51 N. E. 40, 65 Am. St. Rep. 769. See also 
Guest v. State, 19 Ark., 405." (26 Cyc. 1595-1596.) 



WORDS AND PHRASES. 667 

Mayor— Impeachment of. File 20392-612, J. A. G., Aug. 30, 1916. 

Menaces. C. M. O. 8, 1911, 5; 23, 1911, 7. 

■"Mental clarity." C. M. 0. 5, 1915, 2. 

"Mere guesses." C. M. O. 9, 1911, 2. 

Mestizo— " Any one of mixed blood; specifically, in Mexico and the western United States, 

a person of mixed Spanish and Indian blood." (Stan. Diet.) C. M. O. 49, 1915, 23. 
"Mexican currency." 13 J. A G., 480, Aug. 25, 1905. 
"Military delinquency." C. M. O. 9, 1916, 6. 
"Military offenses." C. M. O. 47, 1910, 5; 10, 1911, 5; 16, 1916, 8. 
"Military propriety." C. M. O. 45, 1909. 
"Military trust." C. M. O. 7, 1916, 1; 8, 1916, 1. 
"Minister of justice." C. M. O. 6, 1909, 3. 

Ministerial act—" An act which a person performs in a given state of faots, in a prescribed 

manner, in obedience to the mandate of legal authority, without regard to, or the 

exercise of, his own judgment upon the propriety of the act done." (27 Cyc 793.) 

"Minor operation"— "A comparatively trivial one. (Gould.)" File 26253-98, J. A. G., 

May 17, 1910, p. 12. 
"Minute guns." Circular, Sec. Navy, May 12, 1864. 
"Miscarriage of justice." C. M. O. 6, 1908, 6; 28, 1910, 9; 5, 1912, 14; 4, 1913, 51; 27, 1913, 13; 

12, 1916, 2; Court, 78; Criticism of Courts-Martial, 14, 15, 16, 35, 39. 
Misdemeanor. C. M. O. 23, 1911, 7. 
"Misinterpretation of evidence." C. M. O. 37, 1915, 10. 
"Mistake of fact." C. M. O. 10, 1911, 7; 5, 1912, 8. 
"Mistake of law." C. M. 0. 10, 1911, 7. 
"Moral obliquity." C. M. O. 24, 1914, 10, 15; 51, 1914, 4. 

"Moral turpitude." C. M. O. 28, 1912, 3; 4, 1913, 5, 34, 40; 16, 1916, 8; Witnesses, 52. 
"Morale of the service." C. M. O. 23, 1910, 11. 
"More than 26 years of age"— Means having passed the twenty-sixth birthday. C. M. 

O. 6, 1915, 15. 
Morphine. C. M. O. 42, 1909, 12. 
"Mortal blow." C. M. O. 23, 1911, 12. 
"Mortification caused this officer." C. M. O. 22, 1911. 
"Mulish." File 26251-12159, Sec. Navy, Oct. 7, 1916, p. 1. 
"Multiplication of forms of charge for the same offense." C. M. O. 19, 1911, 3. See also 

Charges and Specifications, 61-68. 
Narcotic — Question discussed as to whether tobacco and cigarettes are narcotics. G. C. M. 

Rec, 30485, p. 760. 
National honor. See C. M. O. 22, 1884, 2. See also Drunkenness, 99; Watch 

Officers, 2. 
National university— Alienation of a site of land at Washington, formerly given for the 

purpose of a national university. File 8288-03. 
Natural and necessary consequences. See Acts, 3. 

"Natural and probable consequences. C. M. O. 8, 1911, 5. See also Acts, 3. 
"Natural and probable consequences. C. M. O. 8, 1911, 5. 
"Navigational lights." C. M. O. 24, 1911, 1. 
"Navigational aids." C. M. O. 32, 1913. 
"Neglect and omission." C. M. O. 9, 1911, 2. 
Negotiable instrument. C. M. O. 27, 1913, 6. 
Nephritis. C. M. O. 20, 1915, 7. 
"Nerve." C. M. O. 5, 1906, 2. 
Neurasthenia. C. M. O. 24, 1914, 6, 18, 19. 
Neurologist. C. M. O. 24, 1914, 6. 

Neurology—" The science of the nervous system." (Stan. Diet.) 
"Neutralizing the error of the court." C. M. 0. 127, 1900, 1. 
Nol. pros. C. M. O. 42. 1914, 6. 

Nolo contendere—"! will not contest it." (29 Cyc, 1053.) See Nolo Contendere. 
Nolle prosequi. See Nolle Prosequi. 

Non compos mentis— "Not of sound mind, memory, or understanding." "A generic 
term including all the species of madness, whether it arise from idiocy, sickness, 
lunacv, or drunkenness." (2 Bouv., 506.) See Insanity, 9. 
Non constat— "It does not appear." (29 Cyc, 1055.) File 24482-34, J. A. G., Mav 1, 1911, 

p. 18. 
"Nonprosecution."— Promise to enlist. See File 7657-395, J. A. G., Sept. 21, 1916. 
Non ultra. CM. 0.23,1911,11. 



; 



WORDS AND PHRASES. 

North Pole— Discovery of. File 26255-83:4, J. A. G., Aug. 4, 1911, p. 5. 

" Norther." See Officer-of-the-Deck, 5. 

Noscitur a sociis — The interpretation of a word or phrase by reference to other words with 

which it is associated. (Va. v. Term., 148 U. S., 503, 519; U. S. v. Rodgers, 150 U. S., 

249, 278; Stoutenburgh v. Hennick, 129 U. S., 141, 147; Hollender v. Magone, 149 U. S., 

586; Amer. Fur Co. v. U. S., 2 Pet., 358, 367; 21 Op. Atty. Gen., 124.) 
Nudum pactum — "A nude pact." "A promise that can not be enforced, either at law or 

in equity." "A voluntary promise, without any other consideration than mere 

good will or natural affection." (29 Cyc, 1141.) 
Nunc pro tunc — "Now for then." "A phrase used to express that a thing is done at one 

time which ought to have been performed at another." (2 Bouv., 528.) File 22724-18; 

26253-386:1, p. 3; 7657-111, p. 11. 
Obesity, general. C. M. 0. 12, 1915, 8. 
Obiter. File 26280-68, J. A. G., Apr. 12, 1916, p. 2. See Words and Phrases (Obiter 

dictum). 
"Obiter dictum"— "An opinion expressed by a court, but which, not being necessarilv 

involved in the case, lacks the force of an adjudication." (1 Bouv., 567.) File 

5362-35, J. A. G., June 29, 1911, pp. 11, 13; 26260-1294, p. 6; Reasonable Doubt, 1. 
"Obligations as an officer and a gentleman." C. M. 0. 16, 1909. 
"Obligations of the service." See Clemency, 10. 
"Official decorum." C. M. O. 42, 1915, 8. 

"Official dutv has been regularly performed"— Presumption. C. M. O. 12, 1911, 4. 
" Omission." C. M. 0. 12, 1911, 5. 
On all fours. See Words and Phrases ("All Fours.") 
Onus— "A burden or responsibility; duty." (Stan. Diet.) 
" Onus for the neglect of. " C. M. O. 37, 1915, 9. 
Onus probandi — "The burden of proof." 
" Opprobrious epithets." C. M. O. 23, 1911, 3; 23, 1911, 6. 
" Oral evidence." C. M. O. 52, 1910, 3. 

"Original papers" in general courts-martial. C. M. 0. 1, 1914, 6; 39, 1915. 
"Outrage public opinion." See Adequate Sentences, 15. 
"Overtake and collide." C. M. O. 29, 1910, 2. 
"Padding." C. M. O. 23, 1913. 
" Parade." C. M. O. 33, 1908, 1. 

Pari materia. See Words and Phrases (In pari materia). 
"Paralleled and shadowed." C. M. O. 29, 1912. 
Parole. File 2715-82, J. A. G., Feb. 4, 1916. 
"Patrol shack." C. M. 0. 16, 1910, 1. 
Paroxysm. C. M. O. 42, 1909, 14. 
Particeps criminis — A partner in crime. 

Pawnbroker. File 26804-8, J. A. G., Aug. 28, 1916; C. M. O. 49, 1910, 6. 
" Pawn stolen goods." C. M. 0. 13, 1908, 2. 
" Pawn tickets." C. M. O. 49, 1910, 6. 
"Pawning." C. M. O. 1, 1912,6. 
Pea-coat. See Officer-of-the-Deck, 5. 
"Peculation" — The unlawful appropriation by a depository of public funds, of the 

property of the Government intrusted to his care, to his own use or that of others." 

(2 Bouv., 641.) C. M. O. 28, 1914, 4. 
Penal Code. (35 Stat., 10S8.) C. M. O. 4, 1913, 35. 
"Pending question." C. M. O. 6, 1915, 7. 
Pendente lite—" Pending the continuance of an action; while litigation continues." (2 

Bouv., 645.) G. C. M. Rec, 31509, p. 4 of charges and specifications. 
Per curiam— "By the court." (2 Bouv., 649.) 
Per se— "Taken alone; in itself; by itself." (2 Bouv., 650.) G. O. 143, Oct. 28, 1869; 

CM. 0.19,1895,2; 125, 1900; 42, 1909,10; 47,1910,8; 14,1910,11; 1,1912,5; Court, 

46; Deserters, 12; Drunkenness, 22, 49, 52. 
"Pernicious." C M. O. 42, 1915. 

"Pie box." C M. O. 28, 1908, 3; G. C. M. Rec. 18904, p. 14. 
Plagiarism — "The act of appropriating the ideas and language of another and passing 

them for one's own." (2 Bouv., 676.) 
Plaintiff. C. M. O. 42, 1914, 6. 

Planets— "Table of planets." See Retired Officers, 59. 
" Play upon words." C. M. O. 104, 1896, 5. 
Plenary powers. See Guam 5. 



WORDS AND PHRASES. 

" Point of law." C. M. 0. 6, 1908, 5. 

Poop deck. See Officer-of-the-Deck, 5. 

Pos*—" Above "or "before." (Index, 1915, 39.) C. M. O. 26, 1911, 6; 49, 1915, 11; File 

26543-66, p. 5. 
Post exchange steward. C. M. O. 5, 1912, 2; 8, 1913, 1. 
" Practice march." C. M. O. 22, 1909. 
"Practice of the service." C. M. O. 3, 1916, 8. 
"Predicate." C. M. O. 88, 1895, 16. 
"Predicated." C. M. O. 4, 1913, 5. 

" Presidio or penitentiary." File 7142-03, J. A. G., Sept. 21, 1903, p. 2. 
Presumption. C. M. O. 12, 1911, 4. 
Presumption of law. C. M. O. 12, 1911, 4, 5. 
" Pride in his profession" — To an officer without "pride in his profession" "a reprimand 

would be a waste of words." C. M. O. 27, 1910, 2. 
Same— Publication of findings and facts established "should be most humiliating to 

an officer with any pride in his profession." C. M. O. 29, 1910, 2. See also C. M. O. 

24, 1912. 
" Pride in his reputation." C. M. O. 7, 1914, 16. 
Prima facie—" At first view or appearance." C. M. O. 49, 1910, 6; 12, 1911, 4; 5, 1912, 12; 

10, 1912, 8; 1, 1913, 6; 6, 1913, 3; 10, 1913, 3; 14, 1913, 4; 34, 1913, 7; 39, 1913, 8; 41, 1914, 3; 

9, 1916, 6; File 26260-1294, p. 3; 26260-1392, pp. 31, 37; 16 J. A. G., 88. 
"Primary evidence." C. M. O. 49, 1910, 15. 
"Prize fighting." C. M. O. 23, 1911, 6; 1, 1913, 6. 
Pro forma— "As a matter of form." (2 Bouv., 762.) File 26251-12159, Sec. Navy, 

Oct. 7, 1916, p. 2. 
Pro rata — "According to the rate, proportion, or allowance." (2 Bouv., 763.) 
Pro re nzta—" For the occasion as it may arise." (2 Bouv., 763). File 5252-36, J. A. G., 

May 5, 1910, p. 5. 
Pro tanto— "For so much." (2 Bouv., 763.) File 10726-03, p. 3; 10726-03, J. A. G. 

Jan. 12, 1904, p. 3. 
Pro tempore — "For the time being; temporarily; provisionally." (32 Cyc. 738.) See 

25 Op. Atty. Gen., 297. 
"Prisoner at large." C. M. O. 10, 1913, 6. 
Probative—" Serving for trial as proof." (Index, 1915, 40.) C. M. 0. 15, 1910, 4; 31, 1915, 

Probative force. C. M. 0. 15, 1910, 4; 31, 1915, 15. 

" Professional brothers." C. M. O. 24, 1908. 

Promissory note. C. M. O. 27, 1913, 6. 

Prosecutor. C. M. O. 42, 1914, 6. 

"Proximate cause." C. M. O. 35, 1915, 9. 

Psychasthenia. C. M. O. 24 1914, 6. 

Public administrator. C. M. O. 6, 1915, 10. See also Disposition of Effects, 2. 

"Public barroom." C. M. O. 23, 1882; 14, 1910, 13; Scandalous Conduct Tending to 

the Destruction of Good Morals, 11. 
Public p obey— "That principle of the law which holds that no subject can lawfully do 

that which has a tendency to be injurious to the public or against the public good. 

(4 H. L. Cas., 1; Greenh. Pub. Pol., 2.) It has been designated by Burroughs, J., as 

'an unruly horse pursuing us, and when once you get astride of it you never know 

where it will carry you.' (2 Bingh. 229.)" (2 Bouv., 792-793.) C. M. O. 31, 1911, 7; 

Evidence, 83. 
"Public saloon." C. M. O. 39, 1908, 1. 
" Public utility." File 3980-621, p. 7. 
"Public works." File3980-621. 

" Pursuance of a common intent." C. M. 0. 10, 1911, 4. 
Quarantine. C. M. O. 8, 1908, 3; 18, 1908, 1. 
Quaere — " Query. " A word frequently used to denote that an inquiry ought to be made 

of a doubtful thing. Commonly used in the syllabi of the reports to mark points of 

law considered doubtful. (2 Bouv., 799.) 
"Quantum of punishment." C. M. O. 24, 1916, 4. 
Quash— "To abate or make void; to overthrow or annul; to vacate bv judicial action." 

(32 Cyc, 1288.) 
Quasi — "As if; almost." A term used to mark a resemblance, and which supposes a 

difference between two objects. It negatives the idea of identity but points out 

that the conceptions are sufficiently similar for one to be classed as the equal of the 

other. (2 Bouv., 803.) See Jeopardy, Former, 3. 



670 



WORDS AND PHRASES. 



Quasi judicial. C. M. O. 7, 1914 8; Commanding Officers, 31; Jeopardy, Former, 3. 

Quasi penal. File 4924-435, J. A. G., June 20, 1916. 

Quid pro quo — "What for what." A term denoting the consideration of a contract 

(2 Bouv.. 808.) 
Quoad hoc— "As to this; with respect to this." A term frequently used to signify, as to 

the thing named, the law is so and so. (2 Bouv., 811.) File 6769-21, J. A. G . Julv 

19, 1911, p. 31. '.-.'' 

Range finder. C. M. O. 37, 1912. 

Rebuke of judge advocate by court. -See Judge Advocate, 60. 
Rebuttal. C. M. O. 75, 1898. 
"Recognizance" — "An obligation of record, entered into before a court or officer duly 

authorized for that purpose, with a condition to do some act required by law which 

is therein specified." (2 Bouv., 847.) See Intent, 2 ; C. M. O. 5, 1912, 12. 
"Red-light district." G. C. M. Rec, 31509, p. 6 of charges and specifications. 
Red tape. An. Rep. J. A. G., 1916, p. 3. 
"Redress of wrongs." C. M. O. 38, 1914, 2. 
Reductio ad absurdum — "Reduction to an absurdity; proof of a proposition by showing 

the absurdity of assuming the truth of its contradictory." (Stan. Diet.) C. M. O. 

7,1914,9. 
"Regular devil." C. M. O. 7, 1911, 6. 
Relator. C. M. O. 31, 1915, 8. 
"Reliefs of the guard." C. M. O. 4, 1911, 5. 

"Religious beliefs." C. M. 0. 16, 1916, 9-10. See also Typhoid Prophylactic, 1. 
Reproof— "Letters of reproof." See Words and Phrases ("Letters of reproof.") 
Res gestae— "Transaction; thing done; the subject matter. See Dying Declarations, 1; 

Res Gestae. 
Res judicata — " The matter has been decided." See Res Judicata. 
"Residue of the sentence." G. O. 46, Jan. 5, 1865. 
Revision — "Additional session." C. M. O. 5, 1912, 15. 
"Retreat to the wall." C. M. O. 23, 1911, 11. 
Riot. C. M. O. 23, 1911, 7. 
" Ruffianly assault." See Assault, 21. 
"Rules for the road." C. M. O. 38, 1905: 29, 1910, 2. 

"Running"— In the sense of "hazing." File 10316-04, J. A. G., Jan. 12, 1905, p. 1. 
"Running mates." File 28687-16, J. A. G., Sept. 16, 1916, p. 4; 111 30-37, p. 6. 
Safe, "insecurely and incompletely locked." C. M. O. 22, 1,910, 2. 
"Sail vessel"— Right of way. C. M. O. 4, 1914. 
Sangley Point (Punta Sangley or Canacao Peninsula). File 7561-03, J. A. G., Sept. 19, 

1903, p. 1. 
"Sans peur et sans reproche" — "Without fear and without reproach." (Stan. Diet., 

D. 2262.) C. M. O. 21, 1894, 3. 
Saturday-afternoon holidays. 13 J. A. G., 204. 
"Savey." C. M. O. 28, 1908. 

"Savoring of insubordination." C. M. O. 4, 1911, 5. 
"Scuffling." See Line of Duty and Misconduct Construed, 71. 
Sedefendendo—" Defending himself." (2 Bouv., 963.) C. M. O. 23, 1911, 11, 12. 
"Sea duties"— The essential duties of an officer of the Navy are "sea duties," File 

28687-14, See. Navy, Jan., 1916. 
"Sea-lawyer" objections. C. M. 0. 16, 1911, 3. 
"Seaman's Act"— Approved March 4, 1915 (38 Stat., 1164). File 27403-132:2, Let. of 

Sec. State, Nov. 20, 1916. 
Searchlight." C. M. 0. 11, 1911. 
" Secondary evidence." C. M. 0. 1, 1911, 5. 
" Secretaries to commanders in chief." G. O. 153, April 18, 1870. 
"Self-defense." C. M. 0. 12, 1911, 7; 23, 1911, 6, 8; Manslaughter, 13; Murder, 32. 
Self-serving statements — Self-regarding or self-serving evidence is "evidence which either 

serves or disserves the party." (35 Cyc, 1374.) C. M. O. 29, 1914, 8. 
Seriatim — "In a series; severally; as, the judges delivered their opinions seriatim. (2 

Bouv., 982.) File 172-04, p. 2; 7657-167, J. A. G., Jan. 17, 1913; 28687-4:1. 
"Set to the eastward." C. M. O. 24, 1911, 2. 
"Shakedown" cruise. C. M. O. 53, 1906, 2. 

"Shielding the officer accused." See Criticism of Courts- Martial, 21. 
"Shipping articles" of the accused. C. M. O. 12, 1911, 3. 
"Shipped over." C. M. O. 28, 1910, 8. 



WOKDS AND PHRASES. 671 

"Short circuits"— Storage batteries of submarines. C. M. O. 41, 1915. 

Sic— "Such." "So; thus; a word inserted in brackets after an erroneous or astonishing 

statement, to indicate that the quotation is a literal transcript." (Stan. Diet.) 

C. M. O. 4, 1913, 51; Embezzlement, 10. 
Sick list. C. M. O. 36, 1909; 42, 1909, 13; Drunkenness, 84; Epilepsy, 3. 
"Sifting of their evidence"— Persons arresting accused. C. M. O. 7, 1911, 10. 
"Signal boy." C. M. O. 28, 1908. 2. 
Sine die— "Without day." "A final adjournment." (36 Cyc, 459.) See G. C. M. Rec 

10196, p. 2. 
Sine qua won— "Without which not." "An indispensable requisite or condition." 

(36 Cyc, 459.) 
"Skylarking." C. M. O. 23, 1911, 3; Line of Duty and Misconduct Construed, 71. 
Smallpox. C. M. O. 35, 1914. See also Small Pox; Vaccination, 3. 
"Smuggling plots"— "Dope" and narcotic drugs. File 13673-3882, Sec. Navy, Sept. 26, 

1916. 
"Sneak." C. M. O. 128, 1905, 4. 
"Solitary drinker." C. M. O. 24, 1914, 15, 17, 19. 
" Son of a bitch." C. M. O. 35, 1892, 2. 
Speaking English— Accused unable to speak or understand English, his confinement 

would seem unnecessary and of doubtful benefit to the discipline of the service, etc. 

C. M. O. 102, 1902, 1. 
Special money requisition. C. M. O. 9, 1916, 10. 

"Speeding" — Officers speeding in automobiles. See Automobile, 1, 2. 
"Spigs." C. M. O. 7, 1914, 4. 
Spite— "In spite or disrespect." C. M. O. 8, 1911, 6. 
Spouse. C. M. O. 31, 1914, 2. 
"Spree." C. M. O. 24, 1914, 20. 

"Squabbling." See Line of Duty and Misconduct Construed, 71. 
Stabbing. C. M. O. 12, 1911, 7; 10, 1912, 5; 19, 1912, 6. 
Stare decisis et non quieta movere — "To stand by decided cases." (36 Cyc, 816.) See 

CrpA-p-p T)t?ptqtq 

"Statement of exceptions." Ct. Inq. Rec. 4952, pp. 1831, 1843. 

Status quo — "The existing state of things at any given date." (36 Cvc, 927.) 

" Sting from the offense." C. M. O. 74, 1899, 2. 

"Stores"— Defined. File 24482-34, J. A. G., May 1, 1911, p. 9. 

"Strait-jacket." C. M. O. 29, 1908, 7. 

Strangulation. C. M. O. 13, 1916, 8. 

"Strict accountabilitv." C. M. 0. 5, 1913, 4; 23, 1916, 2. 

Stricti juris—" Of strict right or law; according to strict law." (370 Cyc, 336.) 

Strictissiyii juris— "The most strict right or law." (2 Bouv., 1049.) 

Strictis simijuria. File 26260-1392, J. A. G., June 29, 1911, pp. 24-24J4 

"Stricture." See Criticism of Courts-Martial, 35. 

Sua sponte — "Of his or its own will or motion; voluntarily; without prompting or sug- 
gestion." (37 Cyc, 339.) C M. O. 31, 1911, 6; 16 J. A. G., 82; Evidence, 82. 

Sub judice—" Under or before a judge or court; under judicial consideration: undeter- 
mined." (37 Cyc, 344.) Sec Jury, 5. 

Sub voc. C. M. O. 23, 1911, 5. 

Sub voce — "Under the word in question; an encyclopedic or dictionary form of refer- 
ence." (Stan. Diet.) 

Suborn— "To procure another to commit perjury." 

Subpoena— "The process by which the attendance of a witness is required: a writ or 
order directed to a person and requiring his attendance at a particular time and place 
to testify as a witness." (37 Cyc, 360.) 

Subpoena ad testificandum—" A process to compel a witness to appear and give testimony, 
commanding him to appear before a court or magistrate therein named, at a time 
therein mentioned, to testify for a party named, under a penalty therein mentioned." 
(37 Cyc, 360.) 

Subpoena duces tecum—" A process whereby a court, at the instance of a suitor, commands 
a person who has in his possession or control some document or paper that is pert inent 
to the issues of the pending controversy to produce it for use at the trial." (37 Cvc. 
360.) 

Sui juris— "Of his own right: possessing full social and civil rights; not under any lesal 
disability, or the power of another, or guardianship." (,37 Cyc, 522.) 

50756°— 17 43 



672 WORDS AND PHRASES. 

"Suit money" — "An allowance which is required to be paid by the husband to the wife 
pending suit for divorce, for the expenses of such suit." (37 Cyc, 526.) G. C. M. 
Rec. 31509, p. 4 of charges and specifications. 

Summons— Enlisted men and others as witnesses. See Witnesses, 59, 107. 

"Summons or complaint." G. C. M. Rec, 31509, p. 4 of charges and specifications. 

Supra— "Above." (Index, 1915, 50.) C. M. O. 49, 1910, 10; 55, 1910, 8; 10, 1911, 5; 2, 1912, 
7; 4, 1913, 43;.5, 1913, 8; 8, 1913, 4; 4, 1914, 7; 24, 1914, 9, 10, 12, 13, 14, 15. File 9736-18, 
J. A. G., June 25, 1910, p. 16; 27231-34, p. 3; 8093-17, J. A. G., Mav 22, 1914, p. 1. Com- 
pare C. M. O. 10, 1911, 5. 

Super visum corporis—" Upon a view of the body." (Stan. Diet., p. 2262.) File 6769-21, 
p. 29. 

Surplusage. C. M. O. 8, 1913, 4; 25, 1914, 6; 24, 1916, 4. 

Syllabus— "A headnote; a note prefixed to the report of an adjudged case, containing 
an epitome or brief statement of the rulings of the court upon the point or points 
decided in the case." (37 Cyc, 660.) File 26287-1020, p. 6. 

"Taken by surprise." C. M. O. 5, 1916, 6; Depositions, 9; Impeachment, 5. 

"Technical accuracy." C. M. O. 23, 1911, 5; 10, 1912, 10. 

"Technical battery." C. M. O. 23, 1911, 6. 

"Technical defense." See Technical Defense. 

"Technical embezzlement." See Embezzlement, 14, 30. 

"Technical error." C. M. O. 9, 1913, 2; 42, 1914, 3. 

"Technically guilty." C. M. O. 12, 1911, 5. 

"Technical inaccuracies." C. M. O. 10, 1912, 10. 

"Technicalinquiries." See Death Gratuity, 25. 

"Technical objections." C. M. O. 4, 1914, 10. 

"'Technical pleas." See Officers, 88, 116. 

"Technicality of law." C. M. O. 5, 1914, 5. 

"Terror of the fleet." C. M. O. 7 1911, 6. 

"Testimony and other evidence.'* C. M. O. 41, 1888, 16. 

" Tie a string to his judicial confession." File 26251-12159, p. 11. 

"Time of the United States." C. M. O. 42, 1915, 11. 

" Torpid moral sense." C. M. O. 51, 1914, 4. 

Tort— "A private or civil wrong or injury." (2 Bouv., 1124.) 

"Tow of target rafts." C. M. 0. 11, 1911, 2. 

Trade— Definition. C. M. O. 21, 1910, 6-8. 

"Traditions of the service." C. M. O. 59, 1904, 2. See also Clemency, 10; Watch 

"Traversing." Ct. Inq. Rec, 4952, pp. 1831, 1843. 

"Travesty of justice." C. M. O. 25, 1915, 1. 

"Travesty on the administration of justice." C. M. O. 7, 1914, 12. 

Train schedules— With reference to instructions in G. O. 110. C. M. O. 23, 1915, 2. 

Trespass. C. M. O. 42, 1909, 10. See also Line of Duty and Misconduct Construed, 

104, 105. 
Try cock. C. M. O. 37, 1915, 4. 
"Trying case out of court." C. M. O. 28, 1909, 3; 37, 1909, 8; 42, 1909, 15: 30, 1910, 5; 1, 

1911, 4; 30, 1912, 6; 10, 1912, 7; 16, 1913, 4; 34, 1913, 8. See also Judge Advocate, 

122-124. 
Tuberculosis— Line of duty. File 7657-390:2, Oct. 6, 1916. 
" Turned back into the next lower class of midshipmen." C. M. 0. 10, 1909, 2. 
"Turpitude or moral wrong." C. M. O. 5, 1912, 8. 
" Two sides" to the story. File 7657-408, Sec. Navy, Oct. 28, 1916. 
Ultimo — "In the month "next preceding the present month." (Stan. Diet.) File 27231- 

77:1, J. A. G., Oct. IS, 1916. 
Ultra vires— " Beyond the lawful capacity or powers." (Stan. Diet.) File 24482-34, 

J. A. G., May 1, 1911. 
"Unambiguous phraseology." C. M. 0. 13, 1916, 8. 
"Unenviable distinction." C. M. O. 16, 1911, 2. 
"Unclean habit of thought." C. M. 0. 18, 1910, 2. 

"Uncontrollable impulse." C. M. O. 24, 1914, 11. See also Insanity, 22. 
"Unlawful assembly." C. M. O. 23, 1911, 7. 

"Unmilitary and criminal conduct." File 26251-12159, Sec. Navy, Oct. 7, 1916, p. 3. 
"Unofficerlike conduct." File 26262-2610, Sec Navy, July 21, 1916; Criticism of 

Courts-martial, 38; C M. O. 7, 1914, 16. 
"Unofficerlike methods." C. M. 0. 16, 1911, 3. 



WORDS AND PHRASES., 673 

"Unsavory matter." File 26251-12159, Sec. Navy, p. 2. 

"Untruthful." C. M. O. 24, 1910. 

"Unwhipped of justice." See Reasonable Doubt, 1. 

Usages of the service. C. M. 0. 18, 1897, 3. See also Customs of the Service, 6. 

Usury — Usury is malum prohibitum, not malum in se. (Hamilton v. Prouty, 50 Wis., 
592.) The universally accepted definition of usury by the courts at the present time 
is that it "is the taking of more interest for the use of money or forbearance of a debt 
than the law allows." In Newton v. Wilson (31 Ark., 484) it was held that "usury 
is the charging of unlawful interest. Unless there is a law which limits the rate of 
interest to be charged there can be no usury." (See also Woodruff v. Hurson, 32 
Barb. [N. Y.], 557.) C. M. O. 21, 1910, 9. 

Ut supra— ■" As above." (Stan. Dict. 2 p. 2263.) File 6769-21, p. 31. 

Utile per inutile non vitiatur — "What is useful is not vitiated by the useless." (C. M. O. 
4,1914,6, 7; 39 CyC, 1098.) 

Utter — "To offer; to"putout; to pass off; to sell; to vend; to emit at large or publish." 
(39Cyc.,1101.) 

"Vacillation of the court and its rulings." See Reports of Deserters Received on 
Board, 3. 

"Vague and indefinite." C. M. O. 7, 1911, 13. 

"Venality and corruption." G. O. 156, May 24, 1870; Congress, 11. 

Verbatim—" In the exact words; wordfor word." C. M. O. 23, 1911, 4; File 3980-650, p. 1. 

Verbiage — "Useof many words without necessity; superabundance of words; wordiness; 
verbosity." (Stan. Diet.) 14 J. A. G., 60, Nov. 3, 1908. 

Vermuth. C. M. O. 56, 1880. 

Vide— "See." (Index, 1915, 52.) C. M. O. 56, 1897, 2; 47,1899; 146,1901,4; 216,1901,2. 

"Vile epithet." C. M. 0. 18, 1910. See also Epithets, 1; Officers, 122. 

" Villify the Constitution." C. M. 0. 14, 1910, 14. 

" Vindices injuriarum." C. M. O. 23, 1911, 11. 

Viva voce — " With the living voice." " By word of mouth." (40 Cyc, 213.) 

Viz.— "Namely" or "to wit." C. M. O. 4, 1916, 3; Filipinos, 3. 

Void—" In the pure sense of the term, absolutely null; without legal efficacy; ineffectual 
to bind parties or to convey or support a right; that which is incapable of enforce- 
ment, and can not be ratified or confirmed; of no legal force; of no effect whatever; 
of no legal force or effect whatever; of no legal force or effect whatsoever; null and 
incapable of confirmation or ratification." (40 Cyc, 214.) See Fraudulent En- 
listment, 30, 31, 32, 50, 92, 93. 

Voidable— "Capable of being avoided; capable of being avoided or confirmed." (40 
Cyc, 214.) 

Voir dire — "A preliminary examination of a witness to ascertain whether he is com- 
petent." (2 Bouv., 1200.) "'To speak the truth.' Refers to an oath administered 
to a proposed witness or juror [or member of a naval court-martial], and also to the 
examination itself, to ascertain whether he possesses the required qualifications, he 
being sworn to make true answers to the questions about to be asked him concerning 
the matter." (40 Cyc, 217.) 13 J. A. G., 324, June 11, 1904. See also Challenges,. 
13; Evidence, 124; Members of Courts- Martial, 39; Voir Dire. 

"Vomit." C. M. O. 23, 1908. 

Waiver— Defined. File 3031-57, J. A. G., Julv 31, 1908. See also Waiving 

War slate— Retired officers. File 3809-640:2; 28573-64. 

"Wardroom." C. M. O. 2, 1911. 

" Wardroom country." G. O. 240, Nov. 23, 1878. 

"Wardroom messrobm." C. M. O. 19, 1914. 

"Wardroom mess." C. M. O. 56, 1880. 

Wardroom wine mess. File 26260-1392, p. 14. 

" Warrant officers' mess." C. M. 0. 19, 1909. 

"Warrant of commitment." C/M. O. 5, 1912, 12. 

"What is useful is not vitiated by the useless." C. M. O. 4, 1914, 6, 7. 

"Wherry." C. M. O. 6, 1915, 13; 12, 1915, 9. 

" White List"— To prevent discrimination against uniform. File 23243-78:3. 

"White-slave traffic act." File 27381-25:1, Sec Navy, July 14, 1916. 

"Wine mess." C. M. O. 6, 1912. 

"Wireless telegram." C. M. 0. 1, 1908, 1. 



674 WORDS AND PHRASES. 

Withdrawal. C M. O. 42, 1914, 6. See also Nolle Prosequi. 
Withdrawing from the combat. C. M. 0. 12, 1911, 7; 23, 1911, 8. 
"Working back." C. M. O. 24, 1916, 3. 

"Year"— In a sentence means 12 calendar months. File 26504, J. A. G., Nov. 3, 1908. 
See also Naval Academy, 26; Sentences, 118. 

WOUND. 

1. Definition— Within meaning of R. S., 1494. See Promotion, 163, 164. 

WRECKS. 

1. Disposition of— The department has no authority to make disposition of wrecks or 

to authorize the raising of them. File 4486-93, Dec. 19, 1907. 

2. Removal— Removal of wrecks of Spanish ships sunk in the battle of Santiago. File 

11142-02, J. A. G., Dec. 26, 1902; 22 J. A. G. 80. 

3. "Submerged and unmarked wreck." C. M. O. 29, 1916. 

WRITTEN INSTRUMENTS. 

1. Charges and specifications. See Charges and Specifications, 106. 

WRONGFULLY AND KNOWINGLY SELLING AND DISPOSING OF SUB- 
SISTENCE STORES OF THE UNITED STATES, FURNISHED AND 
INTENDED FOR THE NAVAL SERVICE THEREOF, IN VIOLATION 
OF ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE 
NAVY. 
1. Officer— Charged with. C. M. O. 23, 1913, 3. 

WRONGFULLY AND KNOWINGLY DISPOSING OF PROPERTY OF THE 
UNITED STATES FURNISHED AND INTENDED FOR THE NAVAL 
SERVICE THEREOF. 

l. Enlisted man— Charged with. C. M. O. l, 1914, 5. 

WRONGFULLY AND KNOWINGLY DISPOSING OF PROPERTY OF THE 
UNITED STATES INTENDED FOR THE NAVAL SERVICE THEREOF, 
IN VIOLATION OF ARTICLE 14 OF THE ARTICLES FOR THE GOV- 
ERNMENT OF THE NAVY. 

1. Paymaster's clerk— Charged with. G. C. M. Rec, 7354. 

"WRONGFULLY" AS EXPRESSING INTENT. See Charges and Specifications, 
52; Joinder, Trial in, 19. 

WRONGFULLY DISPOSING OF PROPERTY OF THE UNITED STATES IN- 
TENDED FOR THE NAVAL SERVICE THEREOF, IN VIOLATION OF 
ARTICLE FOURTEEN OF THE ARTICLES FOR THE GOVERNMENT 
OF THE NAVY. 

1. Chief gunner— Charged with. C. M. O. 38, 1916. 

YEAR. 

1. Definition. See Naval Academy, 26; Sentences, 118. 

YELLOW FEVER. 

1. Commanding officer — Left station and duty without authority when yellow fever 
was raging— Tried by general court-martial and dismissed. C. M. O. 50, 1882. See 
also C. M. O. 59, 1882; 61^, 1S90. 

YOSEMITE, U. S. S. 

1. Clemency— Extended to accused because he had been a member of the crew of. C. 
M. O. 73, 1905. 

YOUTH. 

1. Acquittal— Because of comparative youth of accused. C. M. O. 24, 1916, 4. 

2. Clemency. See Clemency, 68-72. 

3. Witnesses. See Witnesses, 52. 



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